In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed under this sub silentio heightened rationality test in Romer v. Evans and Lawrence v. Texas, but the Court did not make explicit its standard of review in either opinion. The result has been widespread confusion in the lower federal courts as to which standard to apply.
With the growing demographic diversity of the U.S. population, the problem of how to analyze discrimination against a minority that is not already assigned a level of scrutiny will only worsen. In this case, the question arises in the context of sexual orientation discrimination, but there will be other, different examples of invidious discrimination in the future, even if we cannot predict with certainty what those will be. In recognition of that inevitability, the Court should act now to bring coherence and clarity to the law of equal protection.
The brief’s authors propose that the Court adopt a two-part test: first, does the context of the legislature’s enactment of the classification suggest invidiousness, animus, or stereotyping; and second, is the burden imposed by the classification discontinuous with or disproportionate to any legitimate objectives proffered by defenders of the law. This contextual approach is especially useful when a classification, such as age or developmental disability, may be invidious in some instances but not in others.
The Defense of Marriage Act (DOMA) fails any standard under the Equal Protection Clause, including the one proposed here. Petitioner relies chiefly on the argument that DOMA is constitutional because of Congress’ desire to link the benefits of marriage to responsible childrearing, assertedly the rearing of children in a home with a married mother and father. However, the breadth of DOMA, which affects every federal law related to marital status, including those having no connection to procreation, belies that this was a neutral legislative goal. In addition, the burden placed on same-sex couples and, when present, their children greatly exceeds any hypothetical benefit that the law is likely to produce by encouraging heterosexual parents to marry. For these reasons, DOMA should be declared unconstitutional.
Hunter, Nan D. and Goldberg, Suzanne B., "Brief of Amici Curiae Professors Nan D. Hunter, et al., Addressing the Merits in Support of Respondents" (2013). U.S. Supreme Court Briefs. 72.