As many of you no doubt know, the Obama Administration announced a decision to cease defending the Defense of Marriage Act (DOMA) against legal challenges this past Wednesday. Just to be clear, this does not mean the administration will no longer enforce the law. It just means they will no longer take steps to actively defend it in court. Why not just stop enforcing it altogether? Well, just imagine what would happen if every administration could simply pick and choose which laws to enforce! Doing so would all but eliminate the legislative authority of the United States Congress.
To my mind, these developments are interesting to historians of science for at least two reasons. The first has to do with the specific legal reasoning employed in the administration’s decision. The second is about the implications this reasoning has for the role that science plays in democratic society. Let’s start at the beginning, with the law itself.
Section three of DOMA states that: “In determining the meaning of any Act of Congress … the word 'marriage' means only a legal union between one man and one woman as husband and wife.” This has many obvious and far-reaching practical implications for gay couples. Even if you are legally married in a state like Massachusetts, federal law will not recognize the union. For example, a couple I know here in Boston files two separate sets of tax returns: one jointly to the state and another singly to the feds. What if one of them suffers a serious accident when traveling out of state? Will the hospital have to recognize his husband’s visitation rights? The list goes on.
Currently, there are several cases making their way up through the court system that challenge the constitutionality of DOMA under the equal protection clause of the 14th Amendment, which mandates that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As I understand it, this clause was designed to empower the federal government to enforce the principle that “all men are created equal” (expressed in the Declaration of Independence) on the states. However, it has since been interpreted to apply to the federal government itself.
As always, there is a question about how the text of the 14th Amendment (which also includes the even more wide-ranging due process clause) ought to be applied in legal practice. Prior to the announcement on Wednesday, the Justice Department defended the constitutionality of DOMA under the so-called Rational Basis Test. This refers to the level of scrutiny the court applies, i.e., how it goes about deciding if a particular law violates the equal protection clause. To pass the test and be declared constitutional, the law must further a legitimate government interest by reasonable means. This is the most permissive level of scrutiny. In practice, almost no law will ever fails to satisfy the Rational Basis Test because the court can always think of some legitimate government interest the law in question will protect. (To my knowledge, laws only fail the Rational Basis Test is if their passage can be shown to have been motivated by animus against a politically unpopular group.)
However, there are two additional levels of scrutiny a court can use to decide if a particular law violates the equal protections clause. These are called intermediate scrutiny and strict scrutiny. Under intermediate scrutiny the government must show the law substantially furthers an exceedingly compelling government interest. The same applies under strict scrutiny, with the added caveat that there are no other, less restrictive means by which the government can further this exceedingly compelling interest. The particular standard of scrutiny the court uses depends on which classification of people the law impacts. Intermediate scrutiny is usually used for laws that discriminate against members of a so-called Quasi-Suspect Classification, which includes gender and illegitimate children. Strict Scrutiny, on the other hand, is applied to laws that discriminate against members of what is called a Suspect Classification, which includes race, nationality, and religion. It is also applied to laws that seek to deny a Fundamental Right, such as, suffrage, access to the courts, and the right to cross state lines. (As an interesting aside: the distinction between different levels of scrutiny comes from a 1938 Supreme Court case about whether skimmed milk compounded with oil to make it resemble whole milk or cream could be shipped across state lines.)
The Wednesday announcement by Eric Holder, the Attorney General, is all about which level of scrutiny the courts should apply to DOMA. In his announcement, Holder said that up until now “the Department has defended [DOMA] in court because we were able to advance reasonable arguments under that rational basis standard.” However, they would cease to do so in the future. To quote from the official announcement again, “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” That is, from now on, the Justice Department would argue that DOMA should be subjected to intermediate or strict scrutiny, owing to the fact that sexual orientation is a Quasi-Suspect or Suspect Classification.
What does this tell us? For one thing, it tells us that history matters! Which level of scrutiny a court chooses to use when evaluating the constitutionality of a law under the 14th amendment depends on whether they judge a particular classification of people to be Suspect, Quasi-Suspect, or not suspect at all. Clearly, our ideas about which classifications are suspect will change over time. And so will the ideas of judges. There is thus a very real sense then in which our legal system legitimizes discrimination against people if we do not think doing so is suspect. So there is an interesting question here about how we should read the word ‘suspect.’ Do we mean classifications that are morally suspect? Or politically suspect? Or do we think there is a sense in which classifications can just be legally suspect?
Of course, I do not mean to suggest we can avoid this problem. Clearly our legal system discriminates against ax murders. I am not arguing that “ax murderers” ought to be treated as a suspect classification, and that we therefore ought to stop discriminating against them. However, I do think that if the history of science has taught us anything at all, it is this: we ought to suspect all classifications as serving some complex social, cultural, and political purposes! Classificatory schemes are never merely technical innovations, e.g., tools designed to help preserve order in a just society. Is there room, then, for historians of science (especially historians of social science) to make a genuine and potentially very important contribution to what at first sight might look like a purely technical discussion within jurisprudence? I certainly think so!
That’s the first thing I wanted to say. The second applies to what happens next. I can predict with a fairly high degree of certainty that in response to the Wednesday announcement we will witness a fascinating legal and political debate about what it means to classify by sexual orientation. I can also predict, perhaps with a slightly lower degree of certainty, that a great many people involved in this discussion will marshal lots scientific evidence in favor of one view or another. For example, suppose the courts decide to apply intermediate scrutiny to DOMA. That means opponents of same-sex marriage will have to show how the law furthers an exceedingly persuasive government interest. One way I am almost certain they will try to do so is by offering statistical data about how children in same-sex households are raised to become a burden on society. That’s just one possible example, but I’m sure we can all think of plenty more. Again, this strikes me as rich intellectual fodder for anyone interested in the history of social science. What is the proper or most effective role for science in regulatory discussions of this kind? What happens when a prima facie cultural, moral, and political discussion becomes a scientific one?