So, her request was denied (it's a little more complicated than that - there was some back and forth between Judge Kozinski of the 9th Circuit, who tried to enroll her, and the Office of Personnel Management). So, we have a party who has been harmed by a law that discriminates on the basis of sexual orientation... which becomes a lawsuit.
I've already given away the punchline - the law was ruled unconstitutional. One of the interesting aspects of the decision is that it applied a heightened level of scrutiny to sexual orientation discrimination. The judge applied the following four-part analysis:
(1) the history of invidious discrimination against the class burdened by the legislation;
(2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
(3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and
(4) the political power of the subject class.The judge concluded that those four factors required a heightened level of judicial review (other courts have applied the lowest level, "rational basis" review). The judge also held, in the alternative, that the law wouldn't have even passed the lower bar of rational basis review.
I think there's a strong argument that the law required heightened scrutiny because it discriminates on the basis of sex (which receives heightened protection). After all, if the spouse had been a man instead of a woman she would have received health benefits. Mason Law Prof. Ilya Somin argues this point regarding the Prop 8 case. However, applying heightened scrutiny to discrimination on the basis of sexual orientation itself would be an interesting development in the law.
I don't know which case it will be, but I suspect that SCOTUS will take up one of the sexual orientation cases soon and we'll get some definitive way of handling them - rational basis, heightened scrutiny, or as sex discrimination (heightened scrutiny). Or maybe that's wishful thinking, and we'll get some new weird balancing test that depends on the right involved and comes down in a splintered 3-2-2-2 opinion and we'll be more confused than ever. We'll see...
Note to readers: Apologies for the lack of blogging these last two weeks. Between a surprise publication deadline, a funeral, a sick child, a trip to Lancaster, and battling my own illness (I'm all better, thanks for asking), my blogging fell off. Lawffice Space should be back in full force next week.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.