The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians. Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.” And Friday’s brief defended that approach energetically.More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).
This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court. The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.
The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard. “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.” While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”
There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power. From the brief:
Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:
[There is no] convincing record of political power rendering protection unnecessary.
By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.