Decisions in Search of a Doctrine: Marriage Equality in the Lower Federal Courts

Abstract

When gay rights advocates asserted demands for equality in the courts, they found that the likelihood of a favorable outcome was tied to the standard of judicial review—known as the level of scrutiny—the courts applied to the law. “Scrutiny” is a shorthand term that describes the extent to which courts defer to majoritarian decision makers, primarily legislative bodies. The courts’ determination of the appropriate level of scrutiny—crucial to the outcome of the case—depends on the class of people challenging the law, with the courts assigning a higher level of scrutiny to laws affecting groups with insufficient clout to prevent legislation that infringes on their rights. Despite the importance of scrutiny in equal rights jurisprudence, the Supreme Court’s ruling in United States v. Windsor, invalidating the Defense of Marriage Act (DOMA), did not establish the proper level of scrutiny for laws restricting samesex marriage. Although the lower courts overwhelmingly struck state bans on samesex marriage in the cases following Windsor, they did so without guidance from the Supreme Court on the matter of scrutiny. This study presents key district court rulings in the postWindsor litigation, showing that the Supreme Court’s failure to articulate its position on scrutiny provided opportunities for the lower courts to provide their own interpretation of the doctrine. Using the traditional standards for determining the level of scrutiny to apply, most concluded that it was appropriate to apply heightened scrutiny to claims based on sexual orientation. Thus, in addition to its implications for the future of marriage equality, the study also raises broader questions about the continued viability of this decadesold doctrine and the resolution of this doctrinal uncertainty.