Constitutional Avoidance in the 2nd Circuit DOMA Case

By Mike Dorf

Last week's ruling by the Second Circuit in Windsor v. United States employed intermediate scrutiny to invalidate Section 3 of the Defense of Marriage Act (DOMA), the portion that defines marriage as opposite-sex marriage for purposes of federal law.  Readers of this blog and any of my other work will realize that I agree with the bottom line.  I also like the fact that the court used heightened scrutiny rather than mere rational basis review.  With that said, here I'd like to explore the court's reasoning in getting to intermediate scrutiny, which appeared to employ a somewhat unusual version of the principle of constitutional avoidance.

The Second Circuit opinion begins by acknowledging that some other jurisdictions have invalidated parts of DOMA using either conventional rational basis review or what is sometimes called "rational basis review with bite" or with "teeth."  Half-jokingly, I have sometimes called this "extra crispy rational basis review" (ECRBR).  Judge Jacobs notes that the lawyers defending DOMA "wittily" called it "rational basis plus or intermediate scrutiny minus."

Judge Jacobs then goes on to say that resolving the case under some form of rational basis review would be difficult because it is an unresolved question whether there even is a level of scrutiny between conventional rational basis and intermediate scrutiny, and that if there isn't, then it's a close question whether the rationales advanced in favor of DOMA Sec. 3--having a uniform federal definition of marriage, protecting the federal fisc, upholding tradition, and encouraging responsible procreation--count as barely rationally related to DOMA Sec. 3.  But, Judge Jacobs says, the court doesn't need to resolve the difficult rational basis questions because it can decide the case under intermediate scrutiny.

The idea that a court would resolve a case by resolving an easy question rather than a hard question is familiar.  But there are some complications here.

To begin, there is a sense in which Judge Jacobs violates the late Judge Henry Friendly's maxim if it's not necessary to decide an issue to decide a case, it's necessary not to decide that issue.  If the court would have invalidated DOMA Sec. 3 under ECRBR, then it would have been unnecessary to resolve the question of whether heightened scrutiny applies to laws that discriminate on the basis of sexual orientation.  To be sure, that doesn't get us very far, because, conversely, if the court would have invalidated DOMA Sec. 3 under intermediate scrutiny (as it in fact did), then it would have been unnecessary to resolve the questions of whether DOMA Sec. 3 fails ECRBR or conventional rational basis scrutiny.  So resolution under either approach would have obviated the need to resolve unresolved questions under the other approach.

But that kind of equivalence may misapprehend the full force of the Friendly maxim.  I have long understood Friendly's maxim to be connected to other principles of judicial restraint, including the proposition that a court should resolve a case on narrow grounds rather than broad grounds.  And it seems to me that the ruling that intermediate scrutiny applies to sexual orientation distinctions is broader than a ruling that DOMA Sec. 3 fails ECRBR or conventional rational basis scrutiny.

How so?  Well, the intermediate scrutiny holding will have implications for a wider range of cases.  It will mean that laws distinguishing between gay and straight people in other contexts will be problematic.  It will even have the somewhat ironic implication that government affirmative action programs for LGBT persons (if such programs exist) will be presumptively unconstitutional.

To reiterate, I approve of the Second Circuit's decision to apply heightened scrutiny, in no small part because doing so gets at the core problem with DOMA and with laws forbidding same-sex marriage: They invidiously discriminate against gay people.  Applying heightened scrutiny is a way of recognizing the invidiousness of the discrimination in a way that using rational basis scrutiny would not.  Meanwhile, as a matter of constitutional doctrine, I find the idea of additional levels of scrutiny such as ECRBR somewhat antithetical to the whole enterprise of tiers of scrutiny.

I would also note one disagreement with the Second Circuit's substantive ruling.  The court says that heightened scrutiny applies because LGBT persons have the hallmarks of a suspect class.  Here's the key language from the opinion:
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The court then goes on to make arguments for each of these conclusions.  Having done so, the court concludes that heightened scrutiny applies, but what form of heightened scrutiny: strict or intermediate?  In my view, the court should have said it was unnecessary to resolve that question, because DOMA Sec. 3 fails even the lower level, intermediate.  Instead, in a single paragraph, the court asserts without really arguing that intermediate scrutiny applies.  Here is the entirety of the court's analysis on the choice between intermediate and strict scrutiny:

Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny.  We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect.  While homosexuals have been  the target of significant and longstanding discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”  Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews v. Lucas, 427 U.S. 495, 506 (1976)).
I read that language to mean that discrimination on the basis of sexual orientation is more like discrimination on the basis of sex than it is like discrimination on the basis of race--or that gays and lesbians are more like women than like African Americans.  That's not clearly wrong but it's not clearly right either.  While it's true that gays and lesbians were never enslaved on the basis of their sexual orientation, it's also fair to say that feelings of sexism and even racism have sometimes been less severe than the sort of hatred rooted in disgust that has been directed at gays and lesbians.  Given that there's at least a plausible argument for strict rather than intermediate scrutiny, I would have preferred to see the court simply not address that choice.