JURIST Guest Columnists Nick Tiger of Servicemembers United and Danielle Hawkes of The American Military Partner Association argue that the DOJ decision to allow military and veteran benefits for same-sex couples will lead to a Supreme Court ruling on whether heightened scrutiny should be applied to sexual orientation…

On February 17, 2012, US Attorney General Eric Holder sent a letter to John Boehner, the Speaker of the US House of Representatives, that explained that the US Department of Justice (DOJ) will not use federal resources to defend the policy of denying military and veteran benefits to lesbian, gay and bisexual (LGB) spouses. This decision effectively expands the definition of “spouse” in that section to include same-sex marriages performed in recognizing states. The move is another important step for LGB service members and their spouses towards receiving equal recognition in the military as the incredibly toxic Don’t Ask, Don’t Tell fades into a memory. However, the decision holds potential to be a far greater victory for the equality movement in and out of the military. The DOJ rested their decision in part on equal protection grounds, claiming that any state action classifying or targeting sexual orientation is subject to a higher degree of judicial scrutiny. Affording sexual orientation a higher degree of scrutiny builds on Supreme Court precedent. To date, the Supreme Court has held that discriminatory laws against same-sex couples fail to meet even the lowest standard of review and the Court has yet to have the opportunity to determine whether heightened scrutiny is required in evaluating laws that discriminate in this way.

As a refresher, a higher degree of scrutiny is used for laws that create suspect or quasi-suspect classifications, requiring the law to substantially relate to an important or compelling state interest. Under rational basis review, however, the law must only be rationally related to any legitimate government interest. The protection under rational basis is so weak that the cited reason for the law can be a false pretext shielding an underlying discriminatory purpose, and the burden is so low that a party must overcome a presumption that the state act is constitutional, regardless of how lopsided the facts may be. Because rational basis greatly favors the government, any laws classifying or targeting sexual orientation should be given heightened scrutiny. However, because the cases that have reached the Supreme Court have been so egregious as to fail even the rational basis review, the Court has yet to rule on the issue of whether heightened scrutiny is required. This lack of mandate has allowed lower courts to determine which standard to use for such discrimination, causing some courts to rule in favor of the discrimination and some to rule against it. The result is that courts around the country come to contradictory decisions about same-sex couples. For example, courts that chose the former option have allowed laws that tear apart same-sex families, and courts choosing the latter review have held that bans against same-sex marriage are unconstitutional. Under the current state of the law, illegitimate children can receive more constitutional protection during the administration of an estate and paternity testing than a surviving same-sex spouse does in filing for military benefits.

Romer v. Evans and Lawrence v. Texas are often considered turning points for the LGB rights movement. In these cases, the Supreme Court began to recognize that the Constitution should protect LGB people from the discrimination of a state.

In the 1996 case of Romer, the Court held that a Colorado law that prohibited municipalities from recognizing gays and lesbians as a protected class was unconstitutional. Subsequently in Lawrence, the Court held that it was unconstitutional for the police to arrest two consenting adults engaging in homosexual sodomy in a private dwelling, an act that was criminalized in several states prior to the 2003 ruling. While it is true that both cases overturned discriminatory laws targeting sexual orientation, the reality is that the LGB rights movement remains limited even today by the limitations of those cases.

The Romer Court hesitated in recognizing a higher scrutiny for petitioner’s claim of equal protection violations, despite their finding that the statute was based on pure animus of the gay and lesbian community. The Court instead applied rational basis review, still striking down the statute for lack of any legitimate government interest.

When Lawrence was argued before the Supreme Court, petitioners offered two vehicles to strike down the Texas sodomy statute — one rooted in due process and the other in equal protection. In the majority opinion, Justice Kennedy rested his reasoning on due process protections. The focus of the decision was on the intrusiveness of the statute regulating private affairs and relationships. The Court reasoned that the state cannot deprive this type of liberty without due process of the law. Although Justice Kennedy uses the word “fundamental” several times to describe liberty and relationships, he fails to explicitly define what fundamental right would be required for a heightened scrutiny analysis. Furthermore, he also discusses a lack of legitimate state interest, borrowing from the rational basis review instead of heightened scrutiny. Because the opinion uses what appears to be a heightened scrutiny analysis mixed with rational basis terms of art, lower courts are left with the option to apply heightened scrutiny or rational basis in LGB discrimination cases. Although the end result in Lawrence was positive, the LGB movement has continued to be limited almost a decade later as many courts interpret the ruling as applying only a rational basis standard.

The Lawrence court had a lot less to work with than courts do today. At the time the decision was handed down, the leading case on consensual sodomy laws was Bowers v. Hardwick. Bowers did not consider issues of liberty interests or individual rights, and instead sought only to determine if the Constitution protects the right of gays to engage in sodomy. The initial framing of the issue itself led to the conclusion of the Court to uphold sodomy statutes based on a perceived need to intervene for the values of the state, as demonstrated by western civilization as a whole. The argument that the majority of western civilization criminalized sodomy was without authority when the decision was handed down in 1986, yet still managed to score three stare decisis votes in the 2003 Lawrence dissent.

The equal protection argument in Lawrence earned a place in Justice Sandra Day O’Connor’s concurring decision. Only Justice O’Connor offers some basis for an equal protection argument, recognizing that the sodomy statute targeted homosexuals with particularity and rendered them unequal under the law, an inequality that expanded to “employment, family issues, and fair housing.” Despite conceding rampant inequality, Justice O’Connor again offers only a rational basis of review.

As the next step in this developing analysis, the DOJ was recently put in a similar situation as the Lawrence court when they were asked to research the constitutional legality of the Title 38 definition of “spouse.” In looking to the Constitution, the DOJ could have followed the Lawrence precedent and come to the same conclusion under a due process analysis with a rational basis review. The administration did not dodge the question and instead followed decades of traditional discrimination jurisprudence and applied heightened scrutiny in an equal protection analysis. In his letter, Attorney General Eric Holder explained that

the provisions of Title 38 … classify on the basis of sexual orientation, by denying veterans’ benefits to legally married same-sex married couples for which opposite-sex married couples would be eligible … these provisions as applied to legally married same-sex couples cannot survive heightened scrutiny because they are not “substantially related to an important government objective.

Under heightened scrutiny, of course, the DOJ found that the law is unconstitutional and therefore the administration will not defend it. The DOJ resting their decision on an unambiguous heightened scrutiny analysis will make it easier for the Supreme Court to apply heightened scrutiny the next time it is asked to decide on discrimination against same-sex couples, which will create a mandate for lower courts to do the same.

Some may think that the DOJ is overstepping its bounds into the territory of the courts by commenting on who deserves heightened scrutiny. However, the DOJ is not applying their own criterion, but instead is relying on decades of anti-discrimination litigation involving race, sex, national origin and other marginalized groups. Judicial precedent shows that heightened scrutiny should be used for groups that have historically suffered discrimination, are relatively powerless in political processes, are discriminated against based on immutable characteristics, or are subjected to laws based on traits irrelevant to a person’s ability to perform or contribute to society. In a similar DOJ brief released almost exactly a year ago regarding the Defense of Marriage Act (DOMA), the DOJ condensed years of government documents, precedent and common sense to explain that as a group, LGB people, clearly fit into these elements of a suspect class. LGB people have suffered a long history of systematic historical discrimination based on stereotypes and hostility rather than facts. They are relatively powerless as demonstrated by laws which allow, and in some cases require, discrimination against LGB people in contrast to laws that protect other groups against discrimination. Next, the overwhelming evidence shows that sexual orientation is not a chosen characteristic. Lastly, discrimination against LGB service members is not based on service members’ ability to perform or contribute to society given that they are some of the most highly trained professionals in our nation, who have offered to contribute their lives to protecting our country. Several state supreme courts also agree with this analysis and have adopted it to strike down bans against same-sex marriage. Playing by the judiciary’s own rules, the case for heightened scrutiny is both strong and overdue.

Ultimately, the legal issue of LGB rights is a question of constitutionality — not public opinion, political discourse or coffee shop debates. Jurisprudence is not based on the passion and fervor of the day, but on cool reason and democratic principles that were enacted by our Founding Fathers on a piece of parchment paper hundreds of years ago. Many of the greatest civil rights moments were achieved through constitutional interpretation while the public was divided. In 1954, the Court in Brown v. Board of Education ruled segregation unconstitutional under a similar analysis even though that decision defied public sentiment and the laws of 22 states that engaged in state-sponsored segregation. Looking back at Romer and Lawrence, the question of discrimination against LGB people was not fully ripe for a complete analysis. The administration’s newest opinion is a building block in the direction of a complete and accurate analysis concerning same-sex couples, which will very likely lead to the Supreme Court eventually holding the same.

Regardless of whether or not the heightened scrutiny sticks, the advocacy of the Attorney General represents progress where it really counts — on the front lines for our servicemen and women and their spouses. At the end of the day, a same-sex spouse grieves no less than an opposite-sex spouse, and deserves military and veteran death benefits. The DOJ echoes what many already understand, that there is no valid rationale for a military policy that targets individuals solely on the basis of sexual orientation.

From day one, a soldier is taught to look past the individual differences and backgrounds of their comrades to unite for a greater purpose. Today, we unite for the purpose of equality, a right that cannot be taken away absent a compelling government interest.

Nick Tiger graduated from the University of Missouri at Kansas City School of Law and serves as a member of KC LEGAL and Outlaws, both LGBT advocacy organizations. He is also the recipient of the 2010 KC LEGAL LGBT Advocacy Award and the 2010 Filbert Munoz Hispanic Advocacy Award. In addition to an interest in the field of international human rights, Nick is a legal columnist for Servicemembers United, the nation’s largest non-partisan organization of LGBT troops and veterans of the US armed forces, as well as their partners and civilian allies.

Danielle Hawkes is a solo practitioner at Hawkes Legal Services in Salt Lake City, Utah. She graduated from the University of Utah SJ Quinney College of Law in 2010 and served as a fellow with the Law Students for Reproductive Justice at the National Latina Institute for Reproductive Health in Washington, DC. Danielle currently serves on the legal panel for Equality Utah and is also on the national advisory committee for The American Military Partner Association, the nation’s premier support and resource network for the partners and spouses of LGBT service members and veterans.

Suggested citation: Nick Tiger & Danielle Hawkes, Military Benefits for Same-Sex Spouses Advances Equality, JURIST – Hotline, Mar. 6, 2012, http://jurist.org/hotline/2012/03/tiger-hawkes-military-benefits.php.