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An important government objective
An important government objective
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be [link widoczny dla zalogowanych] criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 2003. Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 1988. Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia , 518 U.S. 515,[link widoczny dla zalogowanych], 535-36 1996. "The justification must be genuine, not hypothesized or invented post hoc in response to [link widoczny dla zalogowanych] litigation." Id. at 533.In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 "mere negative attitudes, or fear" are not permissible bases for discriminatory treatment; see also Romer, 517 U.S. at 635 rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or [link widoczny dla zalogowanych] religious objections to homosexuality"; Palmore v. Sidotti, 466 U.S. 429, 433 1984 "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.".
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