The Supreme Court has chosen to weigh in on the same-sex marriage issue, announcing that it will hear both the appeal of California’s Proposition 8 (the case formerly known as Perry v. Schwarzenegger, now called Hollingsworth v. Perry since the state of California declined to attempt to defend the law in court any longer) and Windsor v. United States, a challenge to the clause of the federal Defense of Marriage Act that prohibits the federal government from recognizing any same-sex marriages, even those lawful in the state of celebration. The other major clause of DOMA, which holds that no state can be forced to recognize a same-sex marriage celebrated in another state, is not in the immediate scope of the Court. Most longtime observers do not expect that a ruling will touch the state recognition clause, which would be seen as a much more radical social change. A ruling against the federal recognition clause–already far from certain–would compel the federal government to recognize lawfully celebrated same-sex unions but would not extend gay marriage to any state where it is not currently legal.

It is likely that arguments in these two cases will rely heavily on the Due Process and Equal Protection clauses of the 14th Amendment and the justices’ analysis of whether sexual orientation is a suspect class like race and religion or a semi-suspect class like gender or neither. A law discriminating on the basis of a suspect class distinction must pass strict scrutiny, with a compelling government interest, with the narrowest scope and least restriction of liberty possible. A law with a semi-suspect class distinction must be substantively linked to a compelling government interest. If a class distinction is neither suspect nor semi-suspect, the law must only show a rational link to a government interest.  Legal scholarship is, of course, currently divided on how to deal with discrimination on the basis of sexual orientation. Windsor v. United States was given intermediate scrutiny by the 2nd Circuit Court of Appeals and found to be lacking. The Iowa Supreme Court applied strict scrutiny in Varnum v. Brien when it struck down that state’s marriage statute.

But to me the most interesting recent ruling–and one that has implications for the cases going before the Supreme Court–was Golinksi v. Office of Personnel Management. The federal district court of Northern California found that DOMA should be held to intermediate scrutiny…but that it failed to pass even the rational basis test. It found that the Republican-led Bipartisan Legal Advisory Group (defending DOMA since the Justice Department withdrew from the case) offered no reasons for the law’s existence that were rationally related to the putative government interests involved.

This is congruent with my own impression from reading amicus briefs submitted by traditional marriage groups. Since religious definitions of marriage are out of the question in a federal courtroom, the opponents of same-sex marriage base their case on the idea that marriage is fundamentally about procreation and childrearing, and couples who cannot impregnate one another without help from science are not suitable for marriage. This argument is difficult to sustain as proponents of same-sex marriage immediately reply, “But we let infertile straight people get married. We don’t annul marriages of straight couples who decide not to have children. And we don’t force couples to marry just because they have a child together. How is marriage only about babies?” As Bill Nye says, “Extraordinary claims require extraordinary proof”, and a claim that marriage as it exists in our society is not primarily about emotional pair-bonding is an extraordinary claim.

DOMA’s rational basis argument also is not helped by the CSPAN record of congresspeople debating it back in 1996, when there was scant mention of children as the sole purpose for the institution of marriage and much mention of homosexuality as a form of moral decay. The inconsistencies in the arguments offered in support of DOMA could make it much easier for the Supreme Court to find that the law lacks a coherent rational basis without even elevating sexual orientation to heightened scrutiny.