Joseph Landau wrote a piece for The New Republic about the Obama administration’s decision to stop defending DOMA.
The administration has said it will argue that all laws discriminating on the basis of sexual orientation—including but not limited to DOMA—require “heightened scrutiny,” a higher standard of review courts apply to laws that classify individuals in prohibited ways (for example, by race or gender). Historically, federal courts have been deferential toward legislatures on questions of the law and sexual orientation, applying only “rational basis” review to statutes challenged in court. Rational basis requires courts to presume the constitutionality of a law, and courts applying that test can uphold a statute for reasons a legislature never intended. Should the Obama administration’s heightened-scrutiny argument prevail in the federal courts— perhaps, eventually, even in the Supreme Court—it would flip this rational-basis presumption on its head. “When judges presume that a law is unconstitutional and should be viewed with suspicion, and place the burden on the government to at least show that the actual reasons for the distinctions a law draws were to substantially advance an important government objective, it’s hard for judges to uphold the law,” says Jon Davidson, legal director of Lambda Legal. This could drastically influence a host of gay-rights issues, including marriage, adoption, foster parenting, surrogacy, public education, and workplace discrimination. The DOMA decision, in other words, could affect every nook and cranny of gay rights law—even invalidating some of the most egregious statutes on the books.
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Marriage. Within marriage law, heightened scrutiny could provide the needed ammunition to defeat a number of statewide “mini-DOMAs” that have been written into the laws or the constitutions of 40 states.
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Parenting and family. Heightened scrutiny could also affect family-law issues, such as adoption, custody, and surrogacy. Three states—Michigan, Mississippi, and Utah—prohibit gay couples from adopting either by explicitly excluding them from the process or by excluding single persons who cohabitate outside of marriage (the states that use the latter method don’t allow gay couples to marry).
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Education. Heightened scrutiny would have a big impact on education law by making it easier to challenge statutes that require schools to teach that homosexuality is dangerous, unacceptable, and/or illegal. In Arizona, for example, the legislature has banned any course of study that “promotes a homosexual life-style,” “portrays homosexuality as a positive alternative life-style” or “suggests that some methods of sex are safe methods of homosexual sex.”
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Workplace discrimination. The Obama administration’s position on gay rights would also make it easier for plaintiffs to successfully sue government employers at the federal, state, and local levels who fire them or withhold promotions because of sexual orientation. While some states already have statutory protections barring private and public employers from engaging in sexual-orientation-based discrimination, more than half do not.