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Syd Peterson: What Does “Heightened Scrutiny” Mean?

Syd Peterson: What Does “Heightened Scrutiny” Mean?

by Syd Peterson on February 23, 2011

Jon W. Davidson, Legal Director at Lambda Legal

President Obama and AG Holder announced today that “classifications based on sexual orientation warrant heightened scrutiny” and further, that DOMA, the Defense of Marriage Act, is unconstitutional. Pam Spaulding reports on the story here.  Karen shares the full text of Attorney General Holder’s statement here.

But what does “heightened scrutiny” mean? I checked in with The Boyfriend, aka Lambda Legal’s Legal Director Jon Davidson, for some clarification on the matter.

Jon says:

“The 14th Amendment of our Constitution guarantees the right of equal protection of the laws. When someone brings a lawsuit challenging a law as unconstitutional because they claim it violates that guarantee, the courts need to decide, as an initial matter, how much deference they should give to the actions of other branches of government.

“In most cases, the courts only require that there be a ‘rational basis’ for the difference in treatment between those negatively affected by the law and those not negatively affected. They presume that the other branches of government acted in good faith, and they put the burden on the person(s) bringing the lawsuit to disprove every possible justification for treating them unequally.

“In some cases, however, the courts will apply ‘heightened scrutiny.’ They do this because there are reasons in these cases to be suspicious that other branches of government acted out of bias rather than legitimate reasons. Under this test, the government has the burden of showing that it is necessary to treat one group of people unequally in order to advance an important governmental goal.

“In the past, this test has only been applied to discrimination based on race, sex, religion, national origin, alienage and illegitimacy. The courts apply heightened scrutiny to laws when the group treated unequally (1) has suffered a history of discrimination, (2) is relatively politically powerless, and (3) has distinguishing characteristics that are generally not grounds for unequal treatment.”

So what does this mean for DOMA, and for other anti-gay laws?

Jon continued:

“It means that laws barring marriage equality are much more likely to be struck down as unconstitutional because it is harder for anyone to defend such laws as furthering a legitimate government goal. Further, it means that anti-gay laws should be presumed to be unconstitutional unless proven otherwise.”

{ 3 comments… read them below or add one }

Nick February 23, 2011 at 7:03 PM

One correction worth noting is that race based classifications are subject to strict scrutiny, which is the highest level of review. It’s too bad sexual orientation isn’t considered a suspect class…yet.


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