Know Your Rights: What is ‘heightened scrutiny’ and why is it important?

Courts have found that laws that discriminate against certain groups of people are more likely to reflect prejudice against that group than they are good public policy. Rather than being assumed to be constitutional, such laws need to be justified with exceptionally good reasons. This is called “heightened scrutiny” and has, for example, been used in cases where a racial group is being discriminated against.

GLAD has consistently argued in the courts that sexual orientation deserves “heightened scrutiny.” So it was an enormous breakthrough last week when the President and the Department of Justice (DOJ) agreed with GLAD on that point- and because of that also agreed that DOMA is unconstitutional.

This is only the opinion of the President and the DOJ, and what ultimately matters is how the courts view things. GLAD’s two DOMA cases, Gill and Pedersen, will continue, and we will have to wait to see how the courts rule on the issue of heightened scrutiny, and on DOMA’s constitutionality. If GLAD can convince the courts to accept heightened scrutiny as the proper standard of review, this would impact not only GLAD’s DOMA suits, but any suits that come before those courts which involve sexual orientation.

On the other hand, under the usual review standard that courts use, ”rational basis,” a law is presumed to be constitutional and, in order to demonstrate that, any valid reason (other than a discriminatory one) will do. It is certainly possible to win cases under the rational basis standard. GLAD’s Massachusetts marriage case, Goodridge, was decided on that basis, and U.S. District Court Judge Joseph L. Tauro concluded that Section 3 of DOMA is unconstitutional under rational basis, in GLAD’s Gill case now on appeal in the First Circuit. But heightened scrutiny review greatly increases the chances that a law will be found unconstitutional.

Until there is a final decision by the courts, DOMA remains the law of the land and is being enforced by the federal government. GLAD has prepared a helpful FAQ about what last week’s decision by the DOJ means. Take a look, and contact GLAD’s Legal InfoLine at 800-455-GLAD (4523) with your questions.