This week the Supreme Court will hear two momentous cases in the evolution of equal protection and individual rights, both involving same-sex marriage.
On March 26, in Hollingsworth v. Perry (“Perry”), the Court will hear argument on whether California’s Proposition 8 limiting marriage to persons of the opposite sex amounts to a denial of the Fourteenth Amendment’s guarantees of due process and equal protection of the laws for same sex partners who are denied access to the institution of marriage.
On March 27, in United States v. Windsor (“Windsor”), the Court will hear argument on whether the federal Defense of Marriage Act (“DOMA”) violates the equal protection component of the Fifth Amendment because it excludes same-sex couples legally married under state law from all the federal benefits made available to married persons of the opposite sex.
(Disclosure: The authors of this preview are affiliated with the law firm that represents the Respondent in Windsor and previously represented parties in litigation claiming a right for gay and lesbian couples to marry under New York’s Constitution. The views expressed here are solely of the authors and are attributable only to them.)
In Perry, the Supreme Court granted review of a Ninth Circuit decision holding that California’s Proposition 8, adopted by referendum in 2008 to amend the California state Constitution to define marriage as between a man and a woman, violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. The Ninth Circuit did so on narrow grounds limited to California’s particular circumstances.
The Ninth Circuit began its analysis with the fact that Proposition 8 withdrew a pre-existing right to same-sex marriage that the California Supreme Court previously held to exist under the California Constitution. In that circumstance, the Ninth Circuit reasoned, the issue was whether there was any legitimate basis for withdrawing that right. Moreover, California laws afford all the benefits and privileges available to married opposite-sex couples to same-sex couples in civil partnerships and Proposition 8 left those laws unchanged. Accordingly, the Ninth Circuit concluded, the sole practical effect of Proposition 8 was to withdraw from same-sex couples the right to the term “marriage” for their relationship and the respect, dignity and status that term signified.
Against that background, the Ninth Circuit found that none of the reasons offered by its proponents to justify Proposition 8 provided any conceivably rational basis for the withdrawal of that right and inferred that the only explanation for Proposition 8 was mere disapproval of gay and lesbian persons. Relying on the U.S. Supreme Court’s decision in Romer v. Evans, it held that such a law denied equal protection to California’s gay and lesbian residents.
Because of the California-specific circumstances on which its analysis was premised, the Ninth Circuit found it unnecessary to consider, and expressed no opinion, as to “whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”
In the Supreme Court, the two lesbian and gay couples who are challenging Proposition 8, urge a broader position. They argue that Proposition 8 not only violates the Equal Protection Clause, but denies gay and lesbian persons the fundamental right to marriage guaranteed by the Fourteenth Amendment’s Due Process Clause.
Moreover, Respondents also urge the Supreme Court to apply a “heightened scrutiny” standard in evaluating whether the justifications proffered by the proponents of Proposition 8 are a legitimate basis for the different treatment it affords opposite-sex and same-sex couples.
“Heightened scrutiny” review imposes the burden on the government – or other proponents of laws involving such distinctions between classes of persons – to demonstrate, at a minimum, that the distinction involved, such as one discriminating on the basis of gender, is an appropriate means to achieve an important governmental interest. It contrasts with the highly deferential “rational-basis” standard that imposes a burden on the persons challenging the constitutionality of a law to prove that there could be no conceivable legitimate basis for creating the challenged distinction. Under this lenient rational-basis standard of review, if there is any conceivable set of facts that might be a legitimate basis for the distinctions, the law would be upheld even if the legislators never even considered that basis.
If the Supreme Court were to adopt the heightened scrutiny standard of review urged by Respondents it would make it more likely that any state that fails to permit same-sex marriage, not just California, would violate the Equal Protection Clause.
In Windsor, the Court granted review of a 2–1 Second Circuit decision holding that Section 3 of DOMA, which defines “marriage” as between a man and a woman for the purpose of all federal laws and regulations, violates the guarantee of equal protection implicit in the Fifth Amendment because it denies persons like Ms. Windsor, who are in same-sex marriages legally valid under state law, the benefits afforded similarly situated persons in opposite-sex marriages.
In reaching this result, the Second Circuit evaluated the grounds offered by DOMA’s proponents to justify the distinction drawn by the statute between opposite-sex and same-sex marriages under “heightened scrutiny.”
The Second Circuit found that gays and lesbians satisfied all the qualifications of a “suspect class” that triggers heightened scrutiny, namely that they are members of a group that has been historically subjected to discrimination; that they have an immutable or distinguishing trait that does not affect their ability to contribute to society and that they are a politically weakened minority.
Because it concluded that the justifications proffered by DOMA’s proponents failed to satisfy heightened scrutiny the Court found it unnecessary to employ the highly deferential “rational basis” standard employed by the dissent.
3. The Standard of Review
Despite the differences between Perry and Windsor there are central questions common to both cases, the resolution of which could determine the outcome of both.
Proponents of both Proposition 8 and DOMA offer some of the same justifications for the distinction disfavoring gay and lesbian persons. For example, a principal justification offered in both cases is that the main, or even sole, reason for the existence of marriage as a social institution is to channel potentially unplanned or unintended procreation into “responsible procreation and child rearing.” Because, biologically, only persons of the opposite sex are capable of such unintended or unplanned procreation, encouraging responsible procreation and child rearing is claimed to justify limiting marriage to opposite-sex couples. Other claimed justifications for limiting marriage to opposite-sex couples, such as tradition, a need for caution in “redefining” marriage, and the desirability of leaving this controversial issue to the democratic process, are also common to both cases.
The challengers to these justifications make similar arguments in both cases as to why these justifications fail.
Equally important, both cases involve the common question as to which standard of review should be applied to determine the legitimacy and adequacy of these justifications.
The standard of review is obviously important to all parties in both cases. The proponents of the challenged discriminations in both Perry and Windsor make little or no effort to defend their proffered justifications under a heightened scrutiny standard, strenuously opposing its application and relying almost entirely on rational basis in its most deferential form. The proponents in Windsor allegedly conceded that DOMA could not withstand heightened scrutiny during the oral argument in the Second Circuit. Meanwhile, in both cases, although the challengers to those discriminations argue that the distinctions fail even under a rational basis standard, they open their Equal Protection Clause arguments by arguing intensely for a heightened scrutiny test.
The Supreme Court, in two cases in which it held laws discriminating on the basis of sexual orientation unconstitutional, did so without considering it necessary to specify the standard of review appropriate in such cases. No other circuit besides the Second Circuit in Windsor has applied heightened scrutiny to sexual orientation discrimination. The district court in Windsor, like the First Circuit, applied a more exacting form of rational basis review in holding Section 3 of DOMA unconstitutional. The United States argues in Windsor for a heightened scrutiny standard but asserts that if that standard is rejected it endorses “a more searching form of rational-basis inquiry,” and it maintains that under both standards, Section 3 of DOMA is unconstitutional. The United States asserts, however, that it does not challenge the constitutionality of Section 3 of DOMA under the “highly deferential” standard of rational-basis review.
We note that the rational-basis standard, at least in its highly deferential form, seems entirely inappropriate to evaluate a sexual orientation distinction that classifies a group of persons based on their shared personal characteristics and excludes them from government benefits on that basis. Rational basis has its origins, and has generally been elaborated, almost entirely in cases involving economic regulation. It was born in a case involving regulation of the distribution in commerce of “filled milk,” and its most deferential articulations are found in cases involving the licensing of optometrists and regulation of the cable industry. The latter is a case the proponents of both Proposition 8 and DOMA heavily rely upon.
From its birth in 1938, the Court has recognized that this deferential rational-basis standard is inappropriate in cases involving laws targeting insular minorities who have been the subject of discrimination and oppression by legislative majorities. As Justice O’Connor noted, heightened scrutiny is applied in such cases to “smoke out” invidious discriminations that may be concealed behind benign rationales. That is surely required here where the litigation-crafted rationales proffered by proponents of both Proposition 8 and DOMA mask the reality of the biases and irrational fears regarding gay and lesbian citizens that marked the campaign that led to Proposition 8’s enactment and the legislative history of DOMA.
In any event, the question of which standard of review should be applied in evaluating the justifications offered by the proponents of Proposition 8 and DOMA is certain to be a central focus of questioning by the Justices in both arguments. Which standard they choose could affect the outcome.
4. Standing and Jurisdiction
Finally, there is a threshold question as to whether the Court may reach the merits of these two cases at all.
This question arises because, in both cases, the government officials charged with enforcing the challenged laws agreed that they were unconstitutional and declined to defend them. Given the United States’ agreement with the Second Circuit in Windsor, the Court will hear argument on whether the case comes within the Court’s jurisdiction to hear only “cases and controversies.” And in both Perry and Windsor, the Court will hear argument on whether the parties who replaced the government officials to defend the law—the proponents of the Proposition 8 referendum in Perry and the congressional group who claim to represent the House of Representatives in the DOMA case—have “standing” to do so.
In Windsor, the Court appointed an Amica to argue the proposition that the Court lacks jurisdiction and has set aside an additional 50 minutes for a separate argument on the Court’s jurisdiction, in addition to the one hour allocated for argument on the merits. No such separate allocation has been made of the one hour devoted to the argument in Perry.
For the details of the background to, and arguments being made, in the two cases, please read on.
1. Hollingsworth v. Perry (California Proposition 8)
In 2000, California voters passed Proposition 22, a law providing that the state of California would only recognize marriages between one man and one woman. In May 2008, the California Supreme Court struck down that law, finding that the denial of marriage to same-sex couples violated the equal protection and due process clauses of the California Constitution.
In response, opponents of same-sex marriage coordinated a referendum effort that led to the adoption of Proposition 8 in November 2008. Proposition 8 amended the California Constitution to provide that only a marriage between a man and a woman would be recognized in the state of California. The amendment did not alter California’s existing laws recognizing same-sex “domestic partnerships,” which provide the same benefits and responsibilities for same-sex couples in “domestic partnerships” as applicable to a married man and woman. In 2009, the California Supreme Court upheld a challenge to Proposition 8 on state constitutional grounds.
A lesbian couple and a gay male couple, Kristin M. Perry and Sandra B. Steier and Paul T. Katami and Jeffery J. Zarrillo, as well as the City of San Francisco, subsequently filed suit in the United States District Court for the Northern District of California, alleging that Proposition 8, by denying gay and lesbian California citizens the right to marry based solely on their sexual orientation violates the Due Process and Equal Protection clauses of the Fourteenth Amendment.
Both the Governor of California and the State Attorney General, named as defendants in the suit, announced that while they would enforce the law, they would not defend it. The court permitted a group of citizen-proponents of Proposition 8 to defend the law’s constitutionality in their place.
After a 12 day bench trial, the district court found that Proposition 8 placed an unreasonable burden on the fundamental right to marry, thereby violating the Due Process clause of the U.S. Constitution and created an irrational classification on the basis of sexual orientation, thereby violating the Equal Protection clause. While the district court found that “the appropriate standard of review for distinctions based on sexual orientation was “strict scrutiny”—requiring the proponents of Proposition 8 to show that it was narrowly tailored to achieve a compelling state interest—the court held that Proposition 8 could not pass even rational basis review.
The Proponents appealed the district court’s decision to the Ninth Circuit. The Ninth Circuit first asked to hear arguments on whether the Proponents had standing to defend Proposition 8, in light of the state defendants’ decision not to join their appeal. The Ninth Circuit certified the question to the California Supreme Court, which answered in the affirmative based on California law allowing referendum proponents to defend a referendum on behalf of the state where the state officials responsible for defending the law refused to do so.
The Ninth Circuit then affirmed the district court’s decision, but did so on a narrower basis that reflected the particular California legal context in which Proposition 8 was enacted. It first noted that the issue in this case was limited to whether there was a legitimate basis for withdrawing a right that the California Constitution had previously been held to establish. Moreover, because Proposition 8 did not change the California laws that conferred on civil partners all of the same benefits and responsibilities applicable to married opposite-sex persons, the Court concluded that the practical effect of Proposition 8 was to leave gay men and lesbians with the “incidents” of marriage while withdrawing from them the “status and dignity” that being in a recognized marriage entails.
The Ninth Circuit then examined each of the justifications proffered by the proponents for Proposition 8 in light of this special California framework and concluded that none of them provided any conceivable legitimate or rational basis for the withdrawal of the right of gays and lesbians to the designation marriage. It therefore inferred that Proposition 8 could only have been motivated by disapproval of gay and lesbian persons and held that under the U.S. Supreme Court’s decision in Romer v. Evans, such a law was a violation of equal protection.
Because its decision was premised on California’s special circumstances, the Ninth Circuit found it unnecessary to “consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”
The Supreme Court
The proponents’ petition for certiorari seeking review of that decision was granted on the question whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
The Court’s order granting review also asked the parties to address the separate question of whether petitioners have standing under Article III, § 2 of the United States Constitution, the clause which limits the Court’s jurisdiction to “cases and controversies.”
As standing is a prerequisite for review, the parties’ arguments on that question are summarized first.
The Arguments on Standing
Petitioners argue that they have standing because the Supreme Court of California held that where, as here, California government officials refuse to defend a challenged referendum, the proponents of the referendum have standing to represent the state’s interest in the enforcement of the law as “agents of the people.” Petitioners, as proponents of Proposition 8, thus stand in the shoes of the State of California and California unquestionably has standing to enforce its own laws. Because prior Supreme Court precedent has established that state law determines who has the right to judicially enforce the laws of the state, petitioners maintain that they unquestionably have standing.
Moreover, they add, if the Court found they lacked standing then the Court would have to vacate the judgment of both the Ninth Circuit and the judgment of the district court as well, because the suit against a few officials who offered no defense of Proposition 8 means there was no “case or controversy” to begin with. Petitioners’ further argue that even if there were a case or controversy in the district court, the district court’s sweeping injunction against enforcement of Proposition 8 would have to be replaced by a default judgment limited to the four named plaintiffs.
Respondents assert that petitioners lack standing because petitioners do not contend that they would personally suffer any injury if gay men and lesbians were given the right to marry in California. Respondents distinguish a Supreme Court decision allowing state legislators to sue in place of officials who declined to defend a state law because Petitioners lack the close relationship legislators have with the state. Accordingly, Respondents argue, Petitioners lack a direct stake in the outcome, a fault that cannot be overcome by invoking the state’s interests. They further assert that any argument petitioners might have about the alleged overbreadth of the injunction entered by the district court was waived by petitioners’ failure to raise the issue prior to this appeal and that, in any event, the injunction was appropriate because Proposition 8 imposes an identical injury on all gays and lesbians throughout California.
Petitioners’ Arguments on the Merits
Petitioners begin by rejecting the Ninth Circuit’s characterization of Proposition 8 as a withdrawal of pre-existing rights. Petitioners argue that Proposition 8 was not a constitutional amendment to remove the rights of gay men and lesbian women to marry, but rather an amendment to clarify the definition of marriage in California as it had always been understood by the people.
Moreover, petitioners argue, the Ninth Circuit wrongly interpreted Supreme Court precedent on whether a different constitutional analysis is required when a right is given and then withdrawn and that the only relevant question is whether the Equal Protection clause requires the states to “redefine” marriage to include same-sex marriage in the first place.
Petitioners also argue that the Ninth Circuit’s reliance on Romer was misplaced. Unlike Romer, they argue, Proposition 8 does not reflect any anti-gay animus. They note that Proposition 8 achieved its purpose to restore the traditional definition of marriage as referring to a union between a man and a woman, without affecting California laws that, in addition to the laws providing same-sex partners with the benefits available to opposite-sex married couples, provide gay and lesbian persons with some of the most comprehensive civil rights protections in the nation.
Petitioners, advance four arguments that the Equal Protection clause does not require recognition of gay and lesbian marriages, all grounded in the presumption that rational basis review, and not strict or heightened scrutiny, applies.
Petitioners’ main argument is that the state has a legitimate interest in encouraging marriage between a man and a woman to promote “responsible procreation and child rearing.” They assert that marriage owes its existence to the biological reality that only opposite-sex unions can produce children. Marriage exists, they argue, to provide special recognition, encouragement and support that channels potentially irresponsible and unplanned procreative conduct into stable opposite-sex relationships that serve society’s interest in responsible child rearing. Because persons of the same sex cannot procreate, they argue, same sex marriage would not advance this interest in the same way that opposite-sex marriage does. Citing Supreme Court precedent that held that a classification will be upheld if inclusion of one group promotes a legitimate government interest and others would not, Petitioners maintain that Proposition 8’s limitation of marriage to a man and a woman is, therefore, rationally justified and consistent with the Equal Protection Clause.
Petitioners’ second argument is that Proposition 8 serves California’s interest in proceeding with caution before redefining a traditional social institution. They argue that there are ‘reasonable grounds for concern that officially changing the meaning of marriage…would necessarily entail a significant risk of adverse consequences to the institution of marriage…” Because, they claim, the consequences of redefining marriage cannot yet be foreseen, it was entirely reasonable for California to proceed with caution by restoring the traditional definition of marriage.
Petitioners next argue that Proposition 8 reflects the desire of the people of California to return control over the definition of marriage to the democratic process. Proposition 8 was enacted only after the California courts determined that the California constitution did not permit distinctions between same-sex marriage and marriage between a man and a woman. This is a controversial issue that Petitioners maintain should best be left to the democratic process rather than the courts.
Finally, petitioners argue that these legitimate interests refute the Ninth Circuit’s finding that Proposition 8 must have been motivated by animus towards gays and lesbians. Petitioners assert that a desire to preserve the institution of marriage as between one man and one woman is not the same as a desire to express moral disapproval of same sex marriage. It is an issue about which reasonable people may disagree without any bias against gays or lesbians.
Respondents’ brief goes beyond the narrow, California-specific approach taken by the Ninth Circuit, arguing that Proposition 8 not only violates Equal Protection, but violates Due Process by denying gays and lesbians the fundamental right to marry. 
It argues the right to marry is already one of the fundamental rights protected by the Due Process Clause, and therefore can only be abrogated if California can offer a compelling state interest. They assert that California can offer neither a compelling state interest, nor even a legitimate or rational state interest for depriving gay men and lesbians of the right to marry.
Respondents reject Petitioners’ principal claim that “responsible procreation” is the defining purpose of marriage, citing to evidence at trial that the fundamental purposes of marriage are liberty, privacy, association, and commitment. Permitting gay men and lesbians to marry would accordingly not add a new right, Respondents argue, but ensure that a fundamental right is guaranteed to all persons, regardless of sexual orientation.
Respondents then devote the remainder of their brief to showing why Proposition 8 violates the Equal Protection Clause and to a refutation of the justifications for Proposition 8 advanced by Petitioners.
Respondents begin by asserting that discrimination on the basis of sexual orientation triggers heightened scrutiny, first, because it denies a fundamental right and second, because sexual orientation satisfies all of the criteria for a “suspect class.” Indeed, Respondents maintain that sexual orientation is subject to “strict scrutiny,” the most demanding form of heightened scrutiny, and which requires the government to show that classifications are narrowly drawn to achieve a compelling state interest.
Respondents’ describe the judicial recognition, the trial record, and other evidence that shows beyond dispute that gay men and lesbians have been the victims of a long history of discrimination based on an immutable characteristic that has no bearing on their ability to contribute to society.
Additionally, they describe the relative and continuing political powerlessness of gay men and lesbians to protect themselves from discrimination. While recognizing some of the political successes that gay men and lesbians have recently had, they note that this no more negates their political disadvantage than the improved political position of women deterred the Supreme Court from applying heightened scrutiny to gender discrimination.
Respondents note that Petitioners make no serious attempt to defend Proposition 8 under heightened scrutiny, relying instead on rational basis. But, Respondents argue, Petitioners fail even this level of review. Respondents begin by arguing that Petitioners have incorrectly framed the rational basis inquiry as whether it was rational for California to encourage and support opposite-sex marriage, rather than whether it was rational to exclude same-sex couples from marriage.
Respondents further observe that even rational basis review requires a showing that the classification must “bear a reasonable relation to some legitimate end” and that the rationales invoked “must find some footing in the realities of the subject addressed by the legislation,” and “reasonably be conceived to be true by the governmental decision maker.” Against this background, Respondents proceed to evaluate the justifications offered by Petitioners to show they fail under both heightened scrutiny and rational- basis standards.
Respondents first address Petitioners’ “responsible procreation” argument. Respondents argue that there is no reason to believe that withdrawing the designation “marriage” from same-sex couples will make it more likely that heterosexual couples will marry. Respondents also note that the “responsible procreation” rationale fails as an explanation for the line Petitioners draw around marriage because there are many heterosexuals who cannot procreate unintentionally, including the old, the infertile or the incarcerated, or who have no desire to do so. Yet Proposition 8 excludes none of them from marriage.
In addition, respondents assert that a concern for the promotion of responsible child rearing is at odds with Proposition 8 because Proposition 8 imposes a stigma on children raised in stable same-sex families that are not accorded the dignity and respect of marriage.
Addressing Petitioners’ argument that California had an interest in “proceeding with caution” because of the possible effects that a change of definition of marriage might have on the institution of marriage, Respondents point to the response of Petitioners’ counsel at trial to the court’s question what harm could come to opposite-sex married couples if gays and lesbian couples were permitted to marry, that “I don’t know. I don’t know.”
Respondents also point to the absence of any evidence tending to show that permitting same-sex marriage harms the institution of marriage. Respondents argue that allowing such unsubstantiated fears to justify inequality would mean that discrimination is self-justifying.
Respondents next argue that the people of California did not “proceed with caution.” Instead they enshrined this discriminatory definition in California’s Constitution for an unlimited time rendering it impervious to legislative change.
Lastly, Respondents reject Petitioners “democratic self-government” argument, noting that it is the purpose of the Equal Protection Clause to protect insular minorities from discrimination by majoritarian prejudice or oppression.
Respondents conclude that petitioners’ inability to advance a rational basis for Proposition 8, coupled with the extensive evidence of anti-gay rhetoric in the campaign to pass Proposition 8, makes it clear that the sole purpose of the law was to make gay men and lesbians unequal to everyone else. Because the Supreme Court already established in Romer that a “bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” respondents argue that Proposition 8 is clearly unconstitutional.
It seems unlikely that the Court will dismiss this case on standing grounds. The California law which makes Petitioners the “agent” of the state probably should be sufficient to provide a basis for standing. The fact that the Court did not set aside extra time for argument on the standing issue may also suggest the Court’s relative lack of concern on this issue.
On the merits, much may depend on whether the Court accepts heightened scrutiny as the standard of review. The Respondents make a powerful case for applying heightened scrutiny review here. It is uncertain whether the Court will nevertheless be reluctant to extend heightened scrutiny to a new area.
Good arguments have been made why even under rational basis the justifications for denying marriage to same-sex partners fail, particularly if the more searching form of rational-basis review were employed. At the same time, we note that the “responsible procreation” argument succeeded as a basis for rejecting a right to same-sex marriage under the highly deferential form of rational-basis review in state courts.
The court has a number of options here. It could dismiss for lack of standing, reverse outright, affirm on the narrow basis that limits the result to California and possibly other states with similar laws affording same-sex couples the same rights and duties as married heterosexual couples, or it could affirm on the broader basis urged by the Respondents.
Justice Kennedy may well be the decider once again. There is a tension between his strong states’ rights philosophy and his equally strong view that a central purpose of the “liberty” component of the Fourteenth Amendment is to protect human dignity. It is difficult to predict how he will resolve it.
2. United States v. Windsor (DOMA)
In 1996, in reaction to an Hawaii Supreme Court decision indicating that there might be a constitutional right to same-sex marriage, Congress enacted the Defense of Marriage Act (DOMA), which provided that no State is required to give effect to any public act or proceeding of another State recognizing same-sex marriage (Section 2) and that the definition of “marriage” in all Federal laws means only a legal union between one man and one woman and that “spouse” means “a person of the opposite sex” (Section 3). Section 3 does not purport to have any effect on a state’s ability to recognize same sex marriages, but excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs, including immigration, tax and health and welfare programs whose administration turns in part on an individual’s marital status. Only Section 3 is at issue in this case.
In 2007, respondent Edith Windsor married her long-time partner, Thea Spyer, in Canada, which gives same-sex couples a right to marriage. (The history of Ms. Windsor’s and Ms. Spyer’s relationship is a compelling and moving one that is described in Respondent’s brief.)
Ms. Windsor and Ms. Spyer lived together in New York, which recognized same sex marriages performed in other jurisdictions where they were legally valid. When Spyer passed away in 2009, she left her estate to Windsor. As executor of and heir to Spyer’s estate, Windsor was billed and paid $363,053 in federal estate taxes.
Windsor then filed a refund claim, invoking the “widow’s exemption” which generally exempts property inherited by a surviving spouse from federal estate taxes. The IRS denied Windsor’s refund request on the grounds that Windsor was not a “surviving spouse” within the meaning of the statute because of DOMA’s restrictions. Windsor then filed a tax-refund suit in the United States District Court for the Southern District of New York challenging the constitutionality of Section 3 of DOMA. Before the district court, Windsor argued that DOMA, as applied by the IRS, violates the equal protection component of the Fifth Amendment, because it treats legally married same-sex couples in New York differently from legally married opposite-sex couples.
Shortly after Windsor filed her complaint, the Attorney General notified Congress that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. The Attorney General further explained that this decision was based on their conclusion that Section 3 should be reviewed under heightened scrutiny rather than rational basis. They concluded that Section 3 could not pass heightened scrutiny and accordingly announced that, while they would instruct federal agencies to continue to follow the law, the United States would no longer defend DOMA in court. Shortly thereafter, the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives, a five-member bipartisan group, moved to intervene in the district court action to defend Section 3. That motion was granted.
Before the district court, both BLAG and the United States filed a motion to dismiss Windsor’s challenge, although the United States stipulated that it believed DOMA was unconstitutional under the appropriate standard of review, heightened scrutiny. The United States said it was moving to dismiss solely to insure that the court had Article III jurisdiction to enter a judgment for or against the United States. The district court then denied the motions to dismiss and granted summary judgment in favor of Windsor, concluding that Section 3 violated the equal protection guarantee of the Fifth Amendment under a more exacting form of rational basis review. In light of its holding that Section 3 failed rational-basis review, the court declined to rule on whether or not a heightened level of scrutiny was required.
In a 2–1 decision, the Second Circuit affirmed the district court’s ruling that Section 3 was unconstitutional, but did so using heightened scrutiny. The majority explained that the case under rational basis was “closely argued” and the district court’s “more exacting” rational basis review was the subject of “some doctrinal instability.” Because it concluded that heightened scrutiny applied, the Second Circuit deemed it unnecessary to rule on whether Section 3 could survive rational basis review and it declined to do so.
The United States then petitioned for certiorari, on the grounds that, although the United States agreed with the Second Circuit’s ruling, it still had an interest in having the constitutional question settled by the Supreme Court. The Court granted review.
In doing so, however, the Court also directed the parties to brief the questions whether the Supreme Court had jurisdiction to hear the case in light of the government’s agreement with the Second Circuit, and whether BLAG had standing. Because all parties agreed that the Court does have jurisdiction, the Court appointed counsel as amica curiae to brief and argue the position that the Court does not have jurisdiction.
The Supreme Court
The Court-appointed Amica argues first that BLAG lacks Article III standing to defend DOMA before the Supreme Court, because their claim of injury is too generalized. She argues that no special Congressional prerogatives are at stake, BLAG was not authorized at the time of the proceedings below to represent the views of the House and BLAG does not represent the Senate. At most, Amica argues, it is the full Congress comprised of both the House and the Senate that might have standing to defend the law.
The Amica further argues that without BLAG, there is no case or controversy before the Court, because the United States is in agreement with the Second Circuit’s decision. There are only two examples of Supreme Court cases where the Court exercised jurisdiction to decide the constitutionality of a federal statute that the Executive refused to defend, and where the Executive appealed from an order with which it agreed. Amica distinguishes both those cases. Amica maintains that while there was jurisdiction of the case before the district court, once Windsor won her challenge and the United States agreed with the outcome, the United States should have simply paid the refund and not appealed.
The United States, Windsor and BLAG each filed separate briefs asserting that the Court has jurisdiction to hear the case.
BLAG argues that, as a representative of the House of Representatives, it has standing to defend the law when the Executive Branch will not, because the legislative branch’s law-making function is challenged. BLAG agrees with Amica, however, that if BLAG does not have standing, the case is not properly before the Court, because there is no case or controversy between the United States and Windsor.
Both the United States and Windsor argue that BLAG has no standing before the Court, because it has suffered no cognizable injury. The United States asserts that the Supreme Court does have jurisdiction, however, because there is a live controversy. Whatever the Executive Branch’s interpretation of the law, the United States will continue to deny the refund should the Supreme Court conclude that Section 3 of DOMA is constitutional. The Executive Branch also argues that it has an interest in having the question settled by the highest court. It maintains that otherwise it will be forced to take the same position in multiple lower court cases as it took here—refusing to defend but carrying out its obligation to enforce the law—until some challenger loses and can then take an appeal to the Supreme Court.
Similarly, Windsor asserts that the case is a “case or controversy” properly before the Court because the United States continues to deny her a refund and the Court’s decision will have a tangible effect on Windsor’s rights. Windsor also argues that denying jurisdiction would harm thousands of gay and lesbian persons, who would be forced to litigate the issues already raised here in tax, immigration, family leave and other cases until there was a Supreme Court resolution. Because there is a live controversy between the United States and Windsor, it is irrelevant, says Windsor, whether or not BLAG has standing.
BLAG’s Arguments before the Supreme Court on the Merits
BLAG’s brief begins its argument on the unexamined premise that DOMA is subject only to rational basis review, leaving until the very end of its brief and its reply brief the argument that heightened scrutiny does not apply. It therefore devotes its argument to attempting to show that DOMA passes rational basis review.
BLAG first argues that it was rational for the federal government, as a sovereign, to assert its own definition of marriage to ensure that no state can force its decision on such an important issue on the federal government and that the federal government has the same interests as the states in limiting marriage to its traditional definition as between a man and a woman.
BLAG next argues that DOMA satisfies a rational federal interest in uniformity. It argues that absent DOMA same-sex couples in states recognizing their marriages would get benefits that couples in states not recognizing same-sex marriage would be denied. This effect, BLAG argues, would also discourage same-sex federal employees from moving from states like Maryland, where they are legally married, to states like Virginia where they are not. BLAG also claims that absent DOMA there would be difficult conflicts of laws issues as to whether states that do not authorize same-sex marriages nevertheless recognize same sex marriages valid under the laws of other states.
BLAG also makes many of the same arguments as petitioners in Perry that there is a rational basis for treating same-sex couples differently from couples consisting of one man and one woman—such as the “responsible procreation,” argument, a need to proceed with caution, and tradition. In addition, BLAG argues that DOMA encourages the rearing of children by their biological parents and by a mother and a father, and that, in denying benefits to same-sex married persons, it conserves federal financial resources and avoids uncertain and unpredictable effects on the federal fisc.
BLAG then finally turns to the question of the standard of review.
Pointing to Romer v. Evans and Lawrence v. Texas, BLAG asserts that the Court has already decided that the rational basis standard applies to sexual orientation, and it should continue, as it has in the past, to use that standard. The Court, BLAG argues, should always approach establishing a new suspect class with caution, as applying heightened scrutiny infringes on the democratic process.
Addressing the criteria for establishing a “suspect class” that triggers heightened scrutiny, BLAG begins with what is usually listed as the last of the four criteria: access to the political process. BLAG points to the growing political power of gay and lesbian persons, exemplified, among other things, by recent legislative successes same- sex marriage has had in referenda in Maine, Maryland, Washington and Maryland, and argues that gays and lesbians are far from politically powerless.
BLAG also claims that sexual orientation is not comparable to other immutable traits because it is defined by a propensity to engage in certain kinds of conduct and that unlike characteristics like race or sex, sexual orientation is not shown to result solely from accident of birth, and sexual orientation is “fluid” for some persons. BLAG also argues that homosexuality does not have a long history of discrimination and that unlike women and black persons, homosexuals have never been disenfranchised.
Windsor’s Response on the Merits
Windsor begins by asserting that heightened scrutiny should apply to laws that, like DOMA, discriminate on the basis of sexual orientation.
Unlike BLAG, Windsor addresses the criteria for heightened scrutiny in the same order that courts have heretofore addressed them.
First, Windsor recounts the substantial evidence that gay men and lesbians have experienced a pervasive history of discrimination. Responding to BLAG’s argument that gay and lesbian persons have never been disenfranchised, Windsor notes that illegitimacy is a suspect class that triggers heightened scrutiny, yet citizens born to unmarried parents have never been disenfranchised and that women have had the vote for almost a century and yet the Court applies heightened scrutiny to statutes enacted long after they were enfranchised.
Second, Windsor marshals the evidence that sexual orientation bears no relation to ability to perform or contribute to society. Windsor rejects BLAG’s argument that this factor is not met because gay couples “engage in relationships that do not produce unplanned and unintended offspring”—one of the factors that BLAG claims is a rational basis justifying the discrimination. Windsor argues that this would make the justification to be reviewed the determinant of the scrutiny to be applied and that if permitted would mean that women could not have received heightened scrutiny because of the biological or physical differences between men and women. Windsor notes that it is the general ability to perform and contribute to society, not the specific ground offered as the justification for the discrimination, that determines whether this criterion is met.
Windsor next argues that sexual orientation is an immutable or distinguishing characteristic that defines the group. She points to scientific evidence that most people cannot change their orientation at will and to the fact that most gay and lesbian persons do not want to change their orientation. She notes that the courts, recognizing that sexual orientation is central to a person’s identity, have held that an individual should not be required to abandon that identity to avoid discrimination. She also points to the Second Circuit’s reasoning that sexual orientation is a “badge” that must be revealed when gay or lesbian persons apply for a marriage license or federal benefits. Windsor also notes that the Court, in Lawrence, has rejected BLAG’s argument that there is a distinction between proscribing conduct and targeting gay people for disparate treatment.
Finally, Windsor rejects BLAG’s argument that gay and lesbian persons do not lack political power. She points, for example, to the fact that gay people are the only legally married couples who cannot benefit from federal benefits available to all other married couples, to the extensive use of the political process to enact laws discriminating against gay people, and to the consistent failure of Congress to enact proposed laws to protect against discrimination based on sexual orientation.
Windsor then turns to the justifications for DOMA proffered by the Petitioners. She argues that DOMA fails heightened scrutiny, and that even counsel for BLAG conceded during oral argument in the Second Circuit that its proffered justifications could not withstand intermediate scrutiny.
But Windsor goes on to argue that the justifications, in fact, cannot even withstand rational basis review because it is not rationally related to any legitimate government interest.
Windsor first points to certain characteristics of laws that fail rational basis review that DOMA shares, including laws like DOMA that are so broad and undifferentiated that they bear no reasonable relationship to any legitimate government interest or laws that upset the traditional relationship between the federal government and the states, as is the case with DOMA, which intrudes into family law and child rearing, an area considered uniquely within state competence and jurisdiction.
Windsor makes most of the same arguments made by Respondents in Perry to show that DOMA is not rationally related to the purported goal of promoting “responsible procreation and child rearing.” She also rejects the argument that biological and opposite-sex parents are superior for child rearing to stable same-sex families, as unsupported by the scientific evidence.
Windsor also contends that DOMA does not promote uniformity in the administration of federal benefits. She notes that DOMA departs from the uniformity that the federal government heretofore followed in accepting, with minor exceptions, each state’s definition of marriage, despite the differences between those state definitions. She notes that instead of uniformity, DOMA establishes that there will not be a uniform distribution of benefits, because legally married same- sex couples will be treated differently from opposite sex married couples.
Windsor also rejects the argument that DOMA is rationally based because, by limiting federal benefits to opposite-sex couples, it saves the government money. She points to Supreme Court decisions holding that saving money cannot be a basis for discriminating. She argues that this is not a legitimate justification unless it can be shown that there is some reasonable basis for distinguishing between the group being excluded from, and those receiving, government benefits. She also shows that no effort was made at the time DOMA was passed to research the veracity of this claim and that recently, the Congressional Budget Office has in fact concluded that federal recognition of married gay couples would result in a net benefit to the federal treasury.
Finally, Windsor rejects BLAG’s arguments based on tradition, the protection of democratic self-governance or the need for caution for reasons similar to those made by Respondents in Perry.
The United States’ Arguments on the Merits
The United States supports Windsor’s argument that heightened scrutiny applies, and that DOMA fails heightened scrutiny. The United States asserts, however, that “if the Court declines to apply heightened scrutiny, the government does not challenge the constitutionality of Section 3 of DOMA under the highly deferential standard of rational-basis review,” but that it maintains that “[i]nsofar as the Court were to apply a ‘more searching form of rational-basis review,’… Section 3 would fail that analysis for the same reasons that it fails heightened scrutiny.”
The jurisdictional issue presented in this case is very complicated and unusual. Rejecting jurisdiction would result in many burdens for thousands of gay and lesbian persons as well as the courts and many inefficiencies for the federal government if it pursues the same course as it pursues with Windsor. But the Court very jealously guards the case or controversy requirement and it is uncertain how that will play out here. Accordingly, we hazard no predictions as to how the Court will resolve it.
The merits of the Windsor case may be affected by the argument the preceding day in Perry. The Court’s reaction to the heightened scrutiny argument made there, and with respect to the various arguments proffered to justify treating gays and lesbians differently from opposite-sex couples, will no doubt be watched carefully by the advocates in Windsor.
As we noted in connection with Perry, there is a strong case for heightened scrutiny here or at least the more exacting form of rational basis review applied in the district court and the First Circuit’s DOMA case. But the court has indicated reluctance to establish new “suspect classes” and, as the Second Circuit indicated, the Court’s doctrine regarding the more searching form of the rational-basis standard is subject to “instability.” But as we noted, application of the highly deferential rational-basis standard to sexual orientation distinctions seems inconsistent with that standard’s origins and uses. If there were ever a case for extending the classes covered by heightened scrutiny, that case has been made here.
In the end, it may be that the Court’s reaction to the remarkable and sweeping inequality and hardships that DOMA imposes on legally married same-sex couples will determine the standard chosen rather than the other way around.
 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).
 Id. at 1093
 570 U.S. 620 (1996).
 Perry, 671 F.3d at 1082.
 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
 Romer v. Evans, 517 U.S. 620, 631 (1996); Lawrence v. Texas, 539 U.S. 558, 560 (2003).
 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)
 Gill v. Office of Personnel Management, 682 F. 3d 1 (1st Cir. 2012).
 United States v. Carolene Products, 304 U.S. 144 (1938)
 Williamson v. Lee Optical, 348 U.S. 483 (1955)
 FCC v. Beach, 508 U.S. 307 (1985).
 United States v. Carolene Products, supra at 152, n.4; City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226 (1994) (citation omitted).
 In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
 Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
 Perry, v. Brown, 52 Cal. 4th 1116 (Cal. Sup. Ct. 2011).
 Romer v. Evans, 517 U.S. 620 (1996)
 Perry, 671 F.3d at 1081–1082.
 Id. at 1082.
 Petitioners maintain that Baker v. Nelson, 409 U.S. 810 (1972) in summarily dismissing for want of a substantial federal question, an appeal claiming that Minnesota unconstitutionally denied a right to same-sex marriage, amounted to a rejection of heightened scrutiny based on sexual orientation.
 Johnson v. Robison, 415 U.S. 361, 383 (1974).
 Respondents’ filed two separate briefs, one on behalf of the Kristin Perry, Sandra Steier, Paul T. Katami, and Jeffery J. Zarrillo, the gay and lesbian couples challenging the law, and a second on behalf of the City and County of San Francisco, which joined the couples in their challenge. The San Francisco brief endorses and overlaps with the couples’ brief, but primarily supports the California-specific approach taken by the Ninth Circuit. Hence references to the Respondents primarily refers to the couples’ brief.
 See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967), Zablocki v. Redhail, 434 U.S. 374, 384 (1978) .
 The other form of heightened scrutiny is often called intermediate scrutiny. This level of scrutiny requires proof that the distinction substantially supports an important government interest.
 Romer, 517 U.S. at 634.
 See, e.g. Hernandez v. Robles, 855 N.E. 2d 1 (N.Y. 3006); In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010), Conaway v. Deane, 932 A.2d 571, 630–34 (Md. 2007), Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003).
 28 U.S.C. §1738C.; 1 U.S.C. §7.
 New York has since amended its laws to legalize same sex marriage in New York state. The Second Circuit in this case interpreted New York law at the time as recognizing out-of-state same sex marriages. See Windsor v. U.S., 699 F.3d 169, 177 (2d Cir. 2012).
 Letter from the Att’y General to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.
 BLAG was subsequently authorized by House resolution while BLAG’s own petition for certiorari was pending.
 INS v. Chadha, 462 U.S. 919 (1983); United States v. Lovett, 328 U.S. 303 (1946).
 Romer, 517 U.S. at 63; Lawrence, 539 U.S. at 560. As noted earlier, both Romer and Lawrence, found laws discriminating on the basis of sexual orientation unconstitutional, without finding it necessary to consider the level of review.