Carlos A. Ball is professor of law at the Rutgers University School of Law (Newark). He has written extensively on LGBT rights issues, is the author of From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation and the recently published The Right to be Parents: LGBT Families and the Transformation of Parenthood (NYU Press, May 2012). Ball has received a Dukeminier Award from UCLA's Williams Institute for excellence in sexual orientation and the law scholarship. He lives with his family in Brooklyn, New York.
Now that the U.S. Court of Appeals for the First Circuit in Boston has struck down the Defense of Marriage Act (DOMA), the Supreme Court should quickly agree to hear the case. In its DOMA ruling, the lower appellate court practically begged the high court for guidance on how judges should assess the constitutionality of laws that treat individuals differently because of their sexual orientation.
In some ways, the Supreme Court has had it both ways in matters related to the constitutionality of laws that withhold benefits or impose burdens based on the sexual orientation of individuals. In 1996 (in Romer v. Evans), the Court struck down a Colorado constitutional provision that denied LGBT individuals (and no others) legal protection from discrimination. Seven years later (in Lawrence v. Texas), the Court found unconstitutional a Texas statute that criminalized consensual same-sex sexual intimacy. But the Court in neither case clearly explained how other laws that treat LGBT individuals differently because of their sexual orientation should be assessed under the Constitution. It is now time for the Court to speak on that issue.
Many of us have been arguing for a long time that lesbians and gay men satisfy the Court's own criteria for determining when to apply heightened (or rigorous) judicial review to laws that treat individuals differently because of who they are. The long history of discrimination that lesbians and gay men have suffered, for example, justifies judicial protection. In addition, it is widely accepted that sexual orientation does not affect the ability of individuals to contribute to society. We all know that there are lesbians and gay men who are doctors, lawyers, scientists, engineers, and even members of Congress. This means that courts should be particularly skeptical of laws that target individuals because of their sexual orientation.
In its ruling striking down DOMA, the First Circuit did not find it necessary to address the question of whether lesbians and gay men are entitled to heightened judicial protection. Nonetheless, after pointing to the Supreme Court's own gay rights cases, it concluded that laws which treat individuals differently because of their sexual orientation must, at the very least, be subject to a meaningful form of judicial review that denies those laws a strong presumption of constitutionality.
One of the factors that the Supreme Court is supposed to take into account in deciding whether to hear a case is the extent to which there is a need to provide guidance to lower courts on a particular question of federal law. Although defenders and supporters of DOMA agree on little, both sides should agree that we need to clear up the confusion regarding how courts should assess constitutional challenges to laws that treat individuals differently because of their sexual orientation.
The lesbian and gay plaintiffs in the First Circuit DOMA lawsuit are either currently married or were married before the deaths of their same-sex spouses. The legal issue in the case, therefore, is not whether the plaintiffs have a constitutional right to marry. Instead, the issue is whether the federal government can deprive the tens of thousands of married same-sex couples the hundreds of rights and benefits that it makes available to heterosexual married couples. The nation desperately needs guidance from the Supreme Court on the question of whether this kind of brazen differential treatment is consistent with our constitutional values of equality and fairness.