I have written many articles on the subject of gay marriage and the developing case before the Supreme Court that involves the constitutionality of the Defense of Marriage Act (DOMA) passed in 1996. This case originates out of the First Circuit Court of Appeals based in Boston and involves a Massachusetts same sex marriage statute in relation to the federal law. Specifically, the courts there struck down Section 3 of DOMA- the part that defines marriage as between a man and a woman for the purpose of federal benefits.

Without getting into the morality of same sex marriage or, more broadly speaking, homosexuality, the filings of briefs with the United States Supreme Court give us a great hint at the arguments of both sides on this issue. Although there is no guarantee that the Court will even take the case (both sides urge they do), it will likely be scheduled for their long conference on September 24th with an announcement to take the case soon thereafter, IF they decide to take the case at that point. They can reschedule consideration of the case for a future conference.

There could be an interesting scenario if the Court so chooses. The Obama Administration has decided to stop defending DOMA in the courts based upon the belief it is unconstitutional. Before anyone blames Obama for flaunting his executive powers and not enforcing a law, presidents have that option IF they believe the law is unconstitutional or reasonably believe the Court will find it unconstitutional. Obviously, this applies to laws the President inherited as the veto would be the best option for pending legislation deemed to be potentially unconstitutional. Obama was not the first to do this, although it is rare. Additionally, it should be noted that his legal right not to defend a law in court is based upon a legal memo written by no other than John Roberts when he worked in the Reagan Justice Department. But, the interesting scenario would be if the Court, as they can and have, asks for the view of the Solicitor General. This would force the Obama administration to spell out their reasons for believing the law is likely unconstitutional. It would also delay a decision on taking the case as the Solicitor General is usually afforded 30 or 60 days to provide that brief thus putting off the decision until late October or November.

Regarding one brief filed by GLAD- Gay and Lesbians Advocates and Defenders, a New England-based homosexual rights group- it gives us a glimpse into the agenda of the LGBT community. As I have written in the past, this case will hinge upon the proper level of review afforded the issue. Strict scrutiny is reserved for suspect classes usually based on race, ethnicity, and national origin while heightened scrutiny is usually reserved for classifications based upon gender or illegitimacy, but not sexual orientation. The final level is called rational basis and is generally reserved for commercial or economic legislation.

In the lower courts, they applied rational basis scrutiny for two reasons: (1) the US Supreme Court has never recognized sexual orientation as rising to a higher level and (2) even within the 1st Circuit, there are a number of cases involving sexual orientation not rising to the level of heightened or strict scrutiny. Now, we can argue whether this is right or wrong, or whether sexual orientation should be subject to a higher level of review, but that is the state of the law and Supreme Court and even Circuit Court jurisprudence as it stands today.

One sure way to get the Supreme Court to take a case is if there is disagreement between circuits regarding interpretation of something, or which level of review applies. But, look at the states that currently have gay marriage- they are in the 1st and 9th Circuits and both circuits agree on the level of review. Even still, they come to the conclusion that even under rational basis scrutiny, the laws against same sex marriage are unconstitutional.

The reason they do so is because they argue that even using rational basis, one must look at the context of the law and the motivation behind enactment of the law. The opposition here- the Bipartisan Legal Advisory Group (BLAG)- claims that by doing this, the lower courts have either created a whole new level of scrutiny for analysis specific to sexual orientation OR that they have elevated laws regarding sexual orientation to heightened scrutiny while clothing it in the language of rational basis scrutiny. Ironically, GLAD, in their filing with the Court, argue that BLAG is misinterpreting the rulings of the lower courts because they specifically applied ratiional basis and DOMA still failed the test.

However, please note that the Supreme Court and even the 1st Circuit have NEVER elevated laws regarding sexual orientation to heightened scrutiny. Instead, they rely heavily upon Romer v. Evans, a case that struck down a Colorado law which deterred local municipalities from passing anti-discrimination laws regarding gays. But, relying on Romer v. Evans is rife with pitfalls. In that decision, Justice Kennedy wrote: “…the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” In the case of DOMA, it was not passed with an animus towards the LGBT community, but more as a statement of the approval of the traditional definition of marriage as being between a man and a woman. Arguably, the Colorado law in question in Romer was passed with some animus towards the gay community.

In effect, the LGBT community now, as concerns this litigation, is not only asking the Court to accept the case (they argue the merits while criticizing BLAG for doing the same in their briefs), but also to recognize this de facto heightened scrutiny analysis. Like most laws, DOMA was a statement of belief regarding the legitimacy of marriage between members of the opposite sex. Nothing in that law prevents any state from allowing same sex marriage. In fact, it implicitly recognizes that some states have or would have allowed gay marriage at the time it was passed and then set up an enforcement regimen as concerns the relationship between the states and as concerns federal benefits in those cases where same sex marriage occurs. Hence, how can recognizing that states could allow same sex marriage demonstrate an animus towards the LGBT community?

The motivation is obvious here. The LGBT community will not be satisfied until homosexuals as a group are elevated to a higher level as concerns the level of scrutiny regarding the constitutionality of legislation- federal and state. In short, they want, through judicial fiat, same sex marriage to be recognized nationally. They opt for this strategy because they know they cannot win the legislative battle except in traditionally liberal states which are far less numerous than conservative or even moderate states. Because of this fact, they realize they cannot even win the battle of the minds at the federal legislative level.

There actually is a federal compromise that would work. DOMA applies to federal benefits. Congress could conceivably amend that law and recognize same sex marriage for federal benefits purposes with respect to the action of the states. For example, if Massachusetts wants to allow same sex marriage, federal benefits could be extended to gay couples married in Massachusetts or any other state that recognizes same sex marriage. In fact, although DOMA specifically exempts other states from recognizing those marriages, it also does not deny any other state the option of recognizing those marriages. In this scenario, if Massachusetts marries a gay couple while Indiana, for example, does not, nothing in DOMA denies Indiana the option of recognizing that marriage performed in Massachusetts if they so choose through legislative action. DOMA merely states they are under no legal obligation to recognize that marriage. But then again, that would entail the LGBT community making their case at the legislative level instead of through the courts.

Some here in response to other articles I have written on the subject have argued that civil unions can serve the same purposes as marriage and that should be an option. However, as this LGBT strategy illustrates, they are not even satisfied with that somewhat happy medium. For them, it is an all or nothing proposition. In my home state, New Jersey, we have had civil unions for some time now. In the first three months, 852 couples entered into these civil unions. And after five years, there are decidedly more. Yet, even today the LGBT community in New Jersey is arguing for dissolution of the domestic partner/civil union paradigm and replacing it with gay marriage. That has been the strategy in every state that recognizes civil unions as that “happy medium.” In fact, eight states recognize civil unions- Vermont, Connecticut, New Jersey, Illinois, New Hampshire, Hawaii, Delaware and Rhode Island. Vermont, Connecticut, and New Hampshire have replaced civil unions with outright gay marriage. New Jersey’s legislature passed a gay marriage law that was vetoed by Governor Christie. There have been four attempts to allow gay marriage in Illinois in lieu of civil unions, three of them dying in committee. Delaware and Rhode Island allow civil unions and recognize civil unions performed in other states, although there have been attempts to pass gay marriage laws in these states. And in Hawaii, although their constitution denies same sex marriage, the Democratic Governor Neil Abercrombie has stated his preference for a repeal of that prohibition and passing a gay marriage law. That is, the LGBT community is not satisfied with civil unions. For them, it is all or nothing.

One final thought: many believe that the decision of who to marry is fundamental and no governmental entity should impede that right and that extends to the decision to marry someone of your own gender. States have, since they’ve been writing marriage laws, placed “restrictions” on marriage. For example, laws barring minors or the mentally retarded or close family members are based upon sound principles and no one disagrees with them. And states differ in these laws and alleged rights. Some argue that they have a right to breath clean air and drink clean water, but not every state has the same environmental laws. Some may argue that there is an important inherent right to life, yet not every state has the same abortion laws. There may be a right to a safe workplace, but not every state has identical workplace safety laws. And on and on it goes. And it becomes increasingly more important that these differences be recognized when we are dealing with an issue- marriage- whose parameters and restrictions have traditionally been handled at the state level. Yes, there are over 1,000 federal laws and programs whose benefits are predicated upon “marital status.” But, by amending DOMA with respect to those federal benefits, it would show great deference and respect to the rights of states to legislate in an area where they have since the founding of this country. That, however, is a pipe dream as long as the LGBT wants the wedding cake and wants to eat it also.