On October 18, 2012, the Court of Appeals for the Second Circuit in New York struck down the U.S. federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.*+ The panel parted ways with the prior courts by elevating the standard of review to what’s known as “heightened scrutiny.”
In U.S. constitutional jurisprudence, there are three levels of scrutiny applicable to any particular matter under the U.S. Constitution’s equal protection clause:
(1) “Rational basis” is the lowest level. All laws challenged under the equal protection clause must meet this level of review. Under this test, the law will be upheld if it’s rationally related to a legitimate purpose.
(2) “Heightened Scrutiny” is the middle tier of review. It’s also known as “intermediate scrutiny.” At this level, the law must be substantially linked to its legislative goal.
(3) “Strict Scrutiny” is the highest level of review. A law will be upheld if there is a compelling government interest narrowly tailored to the legislative goal, and the method is the least restrictive one available.
By choosing to apply the heightened scrutiny level to the case, the Court of Appeal recognized that homosexuals have suffered a history of discrimination. Thus, this class of minority is entitled to a higher level of scrutiny. Because the Defense of Marriage Act could not pass the test, ruled the court, it’s unconstitutional under the equal protection clause.
Many legal commentators suspect that the decision made by the Court of Appeal will make it more likely that the Supreme Court will take up the case.
In other words, the fight isn’t over yet. March on, counsels.
*John Schwartz, “U.S. Marriage Is Unfair to Gays, Court Panel Says,” The New York Times, (18 October 2012) online: nytimes.com <http://www.nytimes.com/2012/10/19/us/appeals-court-rules-against-defense-of-marriage-act.html?_r=0>
+Citation currently unavailable
This blog is provided for educational purposes and for your reference. I am not a licensed lawyer in the United States. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.