Precedent forms less of an obstacle to this approach than one might think. Scholars disagree about whether Romer held that laws targeting gays and lesbians receive only rational basis review or alternatively, found that the Colorado amendment failed rational basis and therefore would have failed any level of scrutiny. Either way the common wisdom is that the court did not apply deferential rationality review but rather "rational basis with bite." In invaliding section 3 of the Defense of Marriage Act, Windsor abstained from articulating a tier of scrutiny but also seemed to apply searching review. Heightened scrutiny is not what the court says in these cases, but it may be what it does.
Wednesday, March 25, 2015
SCOTUS' DADT approach to heightened scrutiny in gay discrimination cases
JURIST Guest Columnist Eric Berger, of the University of Nebraska College of Law, ponders how, not if, the U.S. Supreme Court will strike down prohibitions on gay marriage: