Judicial Notebook

In 1996, the Defense of Marriage Act (DOMA) was signed into law by President Bill Clinton. Section 3 of DOMA states that for the purposes of federal law, the term “marriage” refers to “only a legal union between one man and one woman as husband and wife.” Although some states now recognize marriages between same-sex couples, DOMA prohibits federal recognition of these marriages. Because marriage is a factor in more than 1,000 federal statutes addressing such matters as taxation, immigration, Social Security benefits and health care, the effect of DOMA has been to deny legally married, same-sex spouses the same rights, benefits and privileges that are afforded to opposite-sex spouses (e.g., Massachusetts v. U.S. Dept. of Health & Human Serv., 2010).

Lawsuits challenging DOMA Section 3 have been filed in several jurisdictions, and these challenges often invoke the constitutional principle of equal protection, which, in essence, requires that similarly situated people be treated alike under the law. Courts recognize, however, that equal protection “must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons” (Romer v. Evans, 1996).

To reconcile the tension between the principle of equal protection and the practical realities of lawmaking, courts apply different degrees of scrutiny to laws with different scopes and implications. For example, if a law burdens “a fundamental right or targets a suspect class,” it will be subjected to “strict scrutiny, the most searching of constitutional inquiries” (Gill v. Office of Personnel Management, 2010). A law will survive strict scrutiny only if it is “narrowly tailored to achieve a compelling government interest” (Parents Involved in Community Schools v. Seattle School Dist. No. 1, 2007). Conversely, a law that does not burden a fundamental right or target a suspect class need only bear “a rational relationship to a legitimate government interest” (Gill). A law can satisfy the “rational basis” test even if it “seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous” (Romer).

The degree of scrutiny applied to a law can have a profound impact on the success of an equal protection challenge. But which level of scrutiny applies to DOMA Section 3? Some courts have determined that rational basis review applies to classifications based on sexual orientation, and the Obama administration’s Department of Justice has defended the constitutionality of Section 3 in those jurisdictions. Last November, however, lawsuits challenging Section 3 were filed in courts within the Second Circuit, where the level of scrutiny that applies to sexual orientation classifications had not yet been decided. In February, U.S. Attorney General Eric Holder explained in a letter to House Speaker John Boehner that the Department of Justice would not defend DOMA Section 3 in these lawsuits because “classifications based on sexual orientation warrant heightened scrutiny,” and under that standard, Section 3 cannot be “applied to same-sex couples [who are] legally married under state law.”

Psychological research can help courts determine whether DOMA Section 3 can survive equal protection challenges. For example, research indicates that lesbian, gay and heterosexual people are equally fit to marry and parent, and that the children of gay or lesbian couples match the children of heterosexual couples in social functioning, school achievement, cognitive abilities, physical abilities and self-concept (e.g., Herek, 2006; Armesto, 2002; Wainright et al, 2004). Collectively, findings such as these undermine the “government interests” that are typically cited in support of laws such as DOMA — for example, “encouraging responsible procreation and child-bearing” and “defending and nurturing the institution of traditional heterosexual marriage” (Gill). If courts begin to give heightened scrutiny to laws that impose classifications based on sexual orientation, the research noted above is more likely to lead to determinations that DOMA Section 3 is unconstitutional.


“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).