At the Volokh Conspiracy, Case Western Reserve University law professor Jonathan Adler argues that yesterday’s decision by the U.S. Court of Appeals for the Second Circuit invalidating Section 3 of the Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages, “provides a roadmap” for a future Supreme Court decision reaching that same result. He writes:
The key move in Judge Jacobs’ opinion is concluding that sexual orientation is a “quasi-suspect” class justifying intermediate scrutiny. This requires the federal government to show that its policy is substantially related to an important governmental interest. I am not sure existing precedent calls for such heightened scrutiny here, particularly as the Supreme Court in Romer and Lawrence avoided this step. Nonetheless Judge Jacobs makes a plausible case.
Once he’s taken this step, it is quite clear that the federal government is going to lose. While there is little question that DOMA would satisfy traditional rational basis scrutiny (as Judge Straub explains in dissent), it is hard to argue that the federal government has an important interest in refusing to recognize such marriages. Marriages, after all, are performed and legitimated under state law. Seeking uniformity in the federal definition of marriage or paying less in survivor benefits, and the like, are insufficient to justify intermediate scrutiny. (Indeed, due to the marriage penalty, it’s likely that federal recognition of same-sex marriages would actually increase federal tax revenues.) Insofar as the federal government appealed to other interests, such as encouraging a traditional definition of marriage or “responsible procreation,” it’s hard to see how such concerns are the province of the federal government, rather than the states.
Read the rest here.