DOMA's day of reckoning

"DOMA's day of reckoning" Continued...

Issue: "Praying for rain," Aug. 11, 2012

DOMA's challengers, on the other hand, have characterized the law as an impingement on states' rights-that the federal government is impeding state gay-marriage laws. But the Obama administration's brief often alludes to the larger question of whether homosexuality deserves constitutional protections similar to race.

Of the 11 circuit courts that have considered that issue, 11 have said it doesn't, according to Schowengerdt. The 1st Circuit's ruling was more complicated. It said that DOMA passed muster under "rational basis" review, the most deferential test of a law's constitutionality. The court also said that DOMA didn't need to pass a test of "heightened scrutiny"-the next level of review reserved for laws that discriminate on the basis of race or gender. But the 1st Circuit said DOMA failed somewhere between rational basis scrutiny and heightened scrutiny.

The defenders of the law, in their filing with the Supreme Court, argue that if the law were constitutional on a rational basis, and doesn't need a heightened scrutiny review, then it should be declared constitutional. The appeals court, they said, created "a previously unknown standard of equal protection review."

"This is really a stalking horse for getting the court to recognize same-sex marriage," said Linton. "If Congress may not restrict the federal benefits of marriage, the obvious next step is you can't restrict marriage to opposite-sex couples."

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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