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Two days ago, a federal judge ruled DOMA unconstitutional
v. U.S. Office of Personnel Mgmt. - and, it's the Case of the Week! [an enhanced version of this opinion is available to lexis.com subscribers]
The challenge actually arose in the employment law
context. An employee of the 9th Circuit tried to enroll her same-sex partner of
20 years (registered domestic partner in San Fran in 1995 and Cali in 2003, and
then legally married in Cali in 2008) in her family health care plan, which she
purchased through her employer. However, under the Defense of Marriage Act
(DOMA), a spouse is defined as a member of the opposite sex.
So, her request was denied (it's a little more complicated than that - there
was some back and forth between Judge Kozinski of the 9th Circuit, who tried to
enroll her, and the Office of Personnel Management). So, we have a party who
has been harmed by a law that discriminates on the basis of sexual orientation...
which becomes a lawsuit.
I've already given away the punchline - the law was ruled unconstitutional. One
of the interesting aspects of the decision is that it applied a heightened
level of scrutiny to sexual orientation discrimination. The judge applied the
following four-part analysis:
(1) the history of invidious discrimination against the
class burdened by the legislation;
(2) whether the characteristics that distinguish the
class indicate a typical class member's ability to contribute to society;
(3) whether the distinguishing characteristics are
"immutable" or beyond the class members' control; and
(4) the political power of the subject class.
The judge concluded that those four factors required a
heightened level of judicial review (other courts have applied the lowest
level, "rational basis" review). The judge also held, in the
alternative, that the law wouldn't have even passed the lower bar of rational
I think there's a strong argument that the law required heightened scrutiny
because it discriminates on the basis of sex (which receives heightened
protection). After all, if the spouse had been a man instead of a woman she
would have received health benefits. Mason
Law Prof. Ilya Somin argues this point regarding the Prop 8 case. However,
applying heightened scrutiny to discrimination on the basis of sexual
orientation itself would be an interesting development in the law.
I don't know which case it will be, but I suspect that SCOTUS will take up one
of the sexual orientation cases soon and we'll get some definitive way of
handling them - rational basis, heightened scrutiny, or as sex discrimination
(heightened scrutiny). Or maybe that's wishful thinking, and we'll get some new
weird balancing test that depends on the right involved and comes down in a
splintered 3-2-2-2 opinion and we'll be more confused than ever. We'll see...
For additional Employment Law updates, follow
this link to Phillip Miles' blog, Lawffice
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