DoMA challenge heads to oral argument focused on standard of review

U.S. District Court Judge Joseph Tauro will hear arguments this morning on whether DoMA is constitutional. The case is Gill v. OPM, the challenge brought by GLAD. Lead counsel Mary Bonauto will argue in favor of plaintiffs' motion for summary judgment and in opposition to DoJ's motion to dismiss. More background and links to briefs here and here.

It has been more than a year since GLAD filed the lawsuit, and most of the time has been consumed with extensive back and forth briefing on the merits of GLAD's claim that DoMA violates the Equal Protection clause. In this case, like the Don't Ask Don't Tell cases, the Justice Department has been stumbling and bumbling in its efforts to figure out how to frame arguments in defense of a statute that the Administration believes should be repealed.

A central issue in the argument is likely to be what standard of Equal Protection review should apply when a law facially discriminates based on sexual orientation. The government is arguing that the court should uphold DoMA unless it finds that there is no rational basis for it. While I think that, in fact, there is nothing rational about this law, rational basis is the loosest standard or review; it gives the greatest leeway to legislators to use law as a mechanism to inscribe animus and reinforce social hierarchies.  DoJ could have acknowledged the pervasive animus that is evident from the legislative history of DoMA, a context that would support, at the least, the kind of heightened rational basis, or rational basis with bite, that Justice O'Connor described in her concurring opinion in Lawrence v.Texas as the correct lens for viewing most anti-gay laws. But instead the government is taking the same position in this case - that the most lenient version of the most lenient Equal Protection standard should apply - that it is taking in all lgbt rights litigation. 

Unlike military cases, however, Gill v. OPM does not present the court with all the difficulties that arise when judges are asked to second-guess military policy. On that basis alone, the plaintiffs ought to have a better chance of success than exists in the Don't Ask Don't Tell litigation.