By Mary L. Bonauto and Gary D. Buseck

Contrary to much of the commentary about the President’s decision not to defend DOMA in court, the issue of the standard of review for sexual orientation classifications is still a live claim in the First Circuit in the upcoming appeal of the Gill v. Office of Personnel Management case.

Following the lead of Attorney General Eric Holder in his letter to Speaker Boehner, some assume that the First Circuit has already decided the issue and that “binding precedent” will thwart the plaintiffs’ attempt to secure heightened review.  There is “precedent,” but as surely as there is a difference between dicta and a holding, it is not “binding.”

The “precedent” part involves one brief statement from the First Circuit’s decision in Cook v. Gates stating, “homosexuals are not a suspect class.”  528 F.3d at 62.  That isolated comment is not “binding” where the issue was not even litigated in Cook v. Gates, a challenge to  “Don’t Ask, Don’t Tell.”  The Cook plaintiffs argued only that the district court should have applied the type of “robust and realistic rational basis review” supposedly applied by the Supreme Court in Romer.  In Gill, by contrast, the factors have been argued with a record of uncontested expert affidavits on the heightened scrutiny factors.  In any event, the brief discussion in Cook is dicta not “essential to the result reached in the case.”  Cook’s basic holding was that the Court would not overrule “Don’t Ask, Don’t Tell” notwithstanding the fact that the policy was subject to heightened scrutiny for due process purposes.  See 528 F.3d at 60.  Thus, a finding that the classification in Cook was subject to heightened scrutiny on equal protection grounds for any reason would not have changed the ultimate result.

The Holder letter all but concedes that Cook is not “binding precedent.”  Addressing those cases cited as settling the proper standard of review to be rational basis, the Attorney General rightly responded that none of the cases “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.”  Moreover, the fact that no rational basis existed for the laws condemned in Lawrence and Romer does not transform those holdings into determinations on the standard of review for sexual orientation classifications (“neither of those decisions reached, let alone resolved, the level of scrutiny issue”).  The Holder letter even cites Cook for this last point.

While the issue of heightened scrutiny might well be open in the First Circuit, others argue that no new classification will be added to the canon of those receiving heightened judicial scrutiny where none has been added for several decades; and the Supreme Court has curtailed protections for existing groups and on Congressional authority to protect groups through civil rights legislation.  Kenji Yoshino, “The New Equal Protection,” 124 Harv. L. Rev. 747, 757 and n. 72 (2011) (noting that the Supreme Court last accorded heightened scrutiny to a classification – nonmarital parentage – in 1977).   Of course, the issues addressed in Professor Yoshino’s article have been plaguing civil rights litigators for some years.  They, not faux precedent, should perhaps be the bigger concern of the litigants.  However, two points are worth noting: (1) doctrinal consideration of sexual orientation heightened scrutiny was cut off in its infancy by Bowers in 1986 and only got a new chance at life with Lawrence’s extirpation of Bowers as precedent in 2003, suggesting that the standard of review for sexual orientation classifications remains a vital question that the courts should address; and (2) in fact, it is difficult if not impossible to think of any classification based on sexual orientation that can survive appropriate and honest rational basis review under current doctrine in any event.

Mary L. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, and Gary D. Buseck is GLAD’s Legal Director . Bonauto and Buseck are counsel for plaintiffs in the cases of Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management.