Is it possible that President Barrack Obama and Attorney General Eric Holder Jr. read my recent article in Hotspots Magazine on why same-sex couples should be allowed to legally marry? In a major policy reversal, the Obama administration said this week that it will no longer defend the constitutionality of a Federal Law banning the recognition of same-sex marriage as the Defense of Marriage Act (DOMA) violates the equal protection component of the 5th Amendment. Although same-sex couples will still be precluded from marriage in Florida (as of today), the Obama administration’s brave stance against the archaic DOMA will hopefully bust open some of the last remaining walls of discrimination against the gay and lesbian community.
Is it possible that President Barrack Obama and Attorney General Eric Holder Jr. read my recent article in Hotspots Magazine on why same-sex couples should be allowed to legally marry?
In a major policy reversal, the Obama administration said this week that it will no longer defend the constitutionality of a Federal Law banning the recognition of same-sex marriage as the Defense of Marriage Act (DOMA) violates the equal protection component of the 5th Amendment. Although same-sex couples will still be precluded from marriage in Florida (as of today), the Obama administration’s brave stance against the archaic DOMA will hopefully bust open some of the last remaining walls of discrimination against the gay and lesbian community.
To fully explain the ramifications of this policy change, it is necessary to provide a very brief explanation of the Government’s rationality for their past position on the legality of DOMA.
In the United States, our Government compartmentalizes classes of individuals into three levels of scrutiny before determining whether that class is entitled to equal protection under the Constitution. The three levels of scrutiny are Strict Scrutiny, Middle-Tier Scrutiny, and Minimum (or Rational Basis) Scrutiny.
If the Government assigns an individual class (i.e. African Americans) a protection level of “Strict Scrutiny”, the Government must show that the challenged classification (i.e. challenged law) serves a compelling State interest and that the classification is necessary to serve that interest in order for the law to be legally upheld. This is a very low burden for a litigant to overcome. “Strict Scrutiny” classifications are commonly associated with race, religion, and origin. For example, Florida cannot enact a law banning African Americans from driving on the Interstate, as Florida will not be able to show that the including a classification (African American) is necessary to serve a compelling State interest.
On the other end of the spectrum, if the Government assigns an individual class (i.e. Individuals under the age of twenty-one years old) a protection level of “Minimum (or Rational Basis) Scrutiny”, the Government need only show that the challenged classification is rationally related to serving a legitimate State interest. This is a very high burden for a litigant to overcome. Any classification besides race, religion, origin, and sometimes gender typically falls within this category. In cases of Rational Basis Scrutiny, a State could enact a law limiting the privilege to purchase and consume alcohol to a person twenty-one and older. The Supreme Court would uphold this law as the State could point a “rational basis” for the classification (i.e. If Florida did not want underage individuals drinking for health-related reasons).
A very simplistic rule of thumb is that the Supreme Court will uphold any social and/or economic policy where a State can show “any reasonably conceivable state of facts that could provide a rational basis for the law”, unless a constitutionally suspect class (think “race, religion, origin, and possible gender”) or a fundamental constitutional right (think “the right to vote”) were at issue.
Prior to this opinion, “sexual-orientated classifications” were subject to a Rational Basis Scruitiny, instead of a more heightened security such as Strict Scrutiny. The Government did not provide “sexual-orientated classifications” with the same protection as “race, religion, and origin.
As a result of this lower classification, same-sex couples had an uphill battle overturning the draconian laws and policies designed to discriminate against them. For this reason, laws such as DOMA remained an ugly mark of the American legal system because a State (such as Florida) could point to even the most loosely-based reasons as “reasonably conceivable to provide a rational basis under the law” (think of the argument “marriage is meant for procreation and same-sex couples cannot procreate”).
As a result of the Government amending the classification level for sexual orientation to the appropriate (higher) level of scrutiny, laws such as DOMA will be found to be unconstitutional. Simply put, the Government will not be able to meet its burden associated with the higher level of scrutiny assigned to matters relating to sexual orientation.
Moving forward, every State, including Florida, will seemingly have the option to legalize same-sex marriage without worrying about the constitutionality of DOMA. Now, possibly more than ever, it is contingent for Floridians to elect Government officials who will seek to legalize same-sex marriage. The time is near where same-sex couples will not only be afforded the same financial and social benefits as traditionally married couples, but will secure the same basic equality that has been sorely lacking for too long. Of note, I encourage everyone to read Attorney General Eric Holder’s extremely well-written letter to the Speaker of the House which carefully lays out the reasons for the Government’s momentous policy reversal.
The author Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida. The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. handles all criminal defense, family law, and personally injury matters. The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316. Telephone: 954.462.8035. www.lyonssnyder.com
