by Carson Baucher
Election Day 2012 not only saw the reelection of America’s first black president, but it also resulted in an historic set of victories for the LGBT community: Wisconsin’s Tammy Baldwin became the first openly gay person elected to the United States Senate; four LGBT individuals will join the House of Representatives, including the first openly bisexual federal lawmaker and the first openly gay federal lawmaker of color; Colorado elected its first gay speaker of the House; Minnesota voters voted against a ban on same-sex marriage; and voters in three states affirmatively voted to legalize same-sex marriage.
In light of these substantial political victories, the question remains how the courts will grapple with changing public sentiment towards LGBT individuals and issues. The Supreme Court is likely to give us a hint if it chooses to hear either Perry v. Brown, in which the Ninth Circuit Court of Appeals struck down California’s Proposition 8, or one of the four cases working their way through the federal courts this year regarding the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). DOMA limits the definition of “marriage” for federal and inter-state purposes to “a legal union between one man and one woman,” leaving same-sex spouses without many benefits available to opposite-sex spouses.
The DOMA Cases
In the last six months, federal courts have addressed the constitutionality of DOMA in four cases: Golinski v. Office of Personnel Management and Dragovich v. U.S. Department of Treasury, decided in May by the District Court for the Northern District of California; Massachusetts v. U.S. Department of Health and Human Services (often referred to as Gill, the name of one of the plaintiffs in this consolidated decision), decided by the First Circuit; and Windsor v. United States, decided by the Second Circuit.
All four of these cases ultimately came to the same conclusion: DOMA violates the Fifth Amendment’s guarantee of equal protection. The courts came to this conclusion, however, using different levels of equal protection analysis. The Northern District of California in Dragovich, for instance, analyzed DOMA under rationality review, a highly deferential test that requires the government to show merely that the law is rationally related to a legitimate government interest. Despite this low bar, the Dragovich court found that DOMA failed rationality review because the law was motivated by anti-homosexual animus, which, under Romer v. Evans, is not a legitimate government interest.
The Second Circuit in Windsor, on the other hand, found that the rational basis test was the inappropriate standard of review for statutes that classify on the basis of sexual orientation. In an historic move, the Second Circuit became the first federal appellate court to find that gays and lesbians constitute a “quasi-suspect” class. This classification shows that the Windsor court worried about discrimination against gays and lesbians and, as a result, would be skeptical of laws that disadvantage them. As a result, the Second Circuit subjected DOMA to intermediate scrutiny, under which the statute can only survive if it is substantially related to an important government interest. Intermediate scrutiny is the standard of review applied to laws that draw distinctions on the basis of sex or illegitimacy.
The First Circuit in Gill applied a test somewhere between rationality review and intermediate scrutiny, which some commentators have described as “rational basis with bite.” The court found that DOMA was subject to a more exacting version of rationality review because of problems DOMA posed to principles of federalism. According to the First Circuit, marriage is an institution traditionally regulated by the states, and DOMA’s incursion into such regulation required that the “federal government interest … be shown with special clarity.” Under this standard of review, DOMA failed.
In Golinski, the Northern District of California covered all of its bases and subjected DOMA to both intermediate scrutiny and standard rationality review. The court found the statute deficient under both tests.
Election Day Victories for the LGBT Community and their Ramifications for Supreme Court Review of DOMA
At least one of the DOMA cases will likely go before the Supreme Court, and Election Day’s LGBT political victories might well affect the high court’s views. Opinions are not written in a vacuum. At times, the Court looks beyond precedent and legal treatises to the political realities of the day. Indeed, in some of its key civil rights opinions in the past, the Supreme Court has grounded its analyses in the political stance taken by the states on the particular subjects at issue. In Lawrence v. Texas, for example, which struck down Texas’s same-sex anti-sodomy statute, the Court referenced the fact that “25 States with laws prohibiting the relevant conduct … are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.” It went on to state that “[t]hese references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Even in the DOMA cases, courts have bolstered their rulings on the statute’s unconstitutionality with statistics that indicate increasing political and popular support for state recognition of same-sex relationships. The Northern District of California in Dragovich, for instance, noted that “[f]or more than two decades, jurisdictions … have extended to same-sex couples legal recognition in various forms …. Over time, the number of jurisdictions granting these forms of legal recognition has increased.” Given the courts’ awareness of the goings-on in the political sphere, it is likely that the expansion of same-sex marriage rights in three states will drive courts to be even more wary of a federal statute that cuts against this growing trend.
In addition, the growing list of states that support marriage equality implicates concerns about federalism. Same-sex couples can now marry in nine states and the District of Columbia, but DOMA bars the federal government from recognizing any of these marriages. This means that DOMA’s interference affects marriages in nearly 20 percent of the 50 states and in the nation’s capital. If the Supreme Court reviews DOMA, it might adopt an analysis similar to the one the First Circuit employed in Gill, where states’ rights concerns required the court to engage in a level of scrutiny more exacting than mere rationality review.
Despite strong arguments that the political victories of Election Day will increase the likelihood that the Supreme Court will find DOMA unconstitutional, there is one potential drawback. Windsor and Golinski both subject DOMA to heightened scrutiny on a finding that gays and lesbians constitute a quasi-suspect class. The Second Circuit and the Northern District Court for California made such a finding after engaging in a test that traditionally examines four characteristics of the purported suspect class. One relevant factor in the analysis is whether gays and lesbians are a politically weak minority. The successes seen by the LGBT community on Election Day certainly demonstrate that gays and lesbians are growing in political strength. Does this diminish the necessity of protecting LGBT citizens through the judicial process of intermediate scrutiny?
While the strengthened political status of LGBT individuals demonstrated by the victories of Election Day is a potential problem for the case that intermediate scrutiny should apply to DOMA, it likely will not be enough of a concern to eliminate the application of this level of scrutiny. The courts in Windsor and Golinski recognize that the LGBT community has seen some success in the political arena, but nonetheless found that gays and lesbians remain a politically weakened minority. The victories of Election Day – while they are a meaningful indication that public sentiment towards the LGBT community is moving in the right direction – are only a small step towards political equality. It is therefore unlikely that the Court will forego intermediate scrutiny on the basis of Election Day’s LGBT successes.
In the past year, DOMA has been reviewed by five federal courts and, each time, has been struck down as unconstitutional. If and when the Supreme Court hears one of the DOMA cases, the political victories of Election Day 2012 are sure to play into the Court’s decision, either as an explicit component of its analysis, or as an implicit consideration.
For the LGBT community, the importance of Election Day cannot be understated. As one commentator put it, “[T]he game has changed forever. … LGBT Americans should walk a little taller and dance a little harder. It just got better.” The nine individuals who make up the Supreme Court are officers of a neutral judiciary, but they are people too, and in a moment in history when so many Americans have finally cast their vote for LGBT rights, it is difficult to imagine that the hearts of the justices have remain untouched, even from the distant vantage point of the nation’s highest bench.
Carson Baucher is a 2L at NYU and Staff Editor on the Review of Law & Social Change.
 Golinski, 824 F.Supp.2d 968 (N.D. Cal. 2012).
 Dragovich, No. C 10–01564 CW, 2012 WL 1909603 (N.D. Cal. May 24, 2012).
 Gill, 682 F.3d 1 (1st Cir. 2012).
 Windsor, Nos. 12–2335–cv(L), 12–2435(Con), 2012 WL 4937310 (2d Cir. Oct. 18, 2012).
 Romer v. Evans, 517 U.S. 620 (1996)
 See id. at 632; Dragovich, 2012 WL 1909603, at *10.
 See Cruz, supra at n. 5.
 Gill, 682 F.3d at 10.
 Lawrence v. Texas, 539 U.S. 558, 773 (2003) (overruling an earlier Supreme Court case, Bowers v. Hardwick).
 Id. at 771-72. Other Supreme Court decisions that look to the states for cues on where Americans stand on civil rights issues include Loving v. Virginia, 388 U.S. 1 (1967) and Roe v. Wade, 410 U.S. 113 (1973).
 Dragovich, 2012 WL 1909603, at *3.