A New Standard for Equal Protection Review: Rational Basis with Federalism Considerations

In today’s DOMA case, the 1^st Circuit developed a unique standard for equal protection cases: rational basis with federalism considerations. (Rational basis with a bite of federalism)

The court refused to apply strict or intermediate scrutiny based on Supreme Court precedent. The court, instead, used a heightened rational basis standard, as the Supreme Court employed in Romer v. Evans and similar cases. However, the court added a new factor–federalism, stating that federalism considerations diminish somewhat the deference usually given to rational basis cases. The court stated that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture." The court then used federalism cases to create the review standard: "In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases." The court added that a statute that violates equal protection is probably beyond Congress’s power. The court wrote, "Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns."

Based on this standard, the court found that none of the rationales supporting DOMA were adequate. The court finished: "To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

(Scott Fruehwald)