And the notion of “judges independently determin[ing] that rational basis was the standard” reflects a basic misunderstanding of constitutional law. Rational basis –is– the standard for all classifications unless a court determines that a higher standard applies.

The plaintiffs will argue that in anti-gay discrimination cases a more heightened level of scrutiny be applied. The Department of Justice has indicated that it will not argue for rational basis and, we must assume, would stipulate to a more heightened standard of scrutiny, or at least leave the plaintiffs’ arguments to stand without rebuttal. (not being an attorney, I’m uncertain if basis can be stipulated, but certainly the facts on which basis is established can be)

Thus any decision by the judge that rational basis be applied would indeed be determined independent of the parties to the case.

You are invited to go read sites that share your priorities. These are the stories that interest the authors and readers of Box Turtle Bulletin.

The author suggests that the standard of review is not critical to effective judicial review. He suggests that it is possible to ‘test the reasons for laws’ sufficiently without augmenting the ‘scrutiny framework’:

http://balkin.blogspot.com/2011/02/holders-gamble.html

Holder’s memo said:

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

It doesn’t actually say WHICH form of heightened scrutiny should apply, just that rational-basis review is insufficient. I suspect the ambiguous wording is on purpose.

And the notion of “judges independently determin[ing] that rational basis was the standard” reflects a basic misunderstanding of constitutional law. Rational basis –is– the standard for all classifications unless a court determines that a higher standard applies.

Over and over with the issue of DOMA… Ok I get the importance and I also understand the passion behind your commentary. However, why is Box Turtle being so closed mouth about the following issue?

“The Human Rights Campaign (HRC) – the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization – today called on American Federation of State, County and Municipal Employees(AFSCME) Gerald W. McEntee to come out against the kind of anti-LGBT bullying sadly typified by a union activist protesting in Rhode Island.  According to media accounts, union activists participating in a AFSCME solidarity rally caught a cameraman reporting on the protest’s lackluster attendance.  That prompted one activist to respond by hitting the reporter and then saying, ““I’ll f**k you in the a*s, you f**got!””

“Anti-gay language by union activists often starts in the workplace – or at least, that’s where it should be stopped,” said HRC President Joe Solmonese.  “It is our sincere hope that Gerald McEntee will take this opportunity to speak out and condemn these kinds of insensitive remarks.  It’s time for union leaders to teach their members a lesson in decency and respect.”

Here’s the YouTube video of the incident/ the actual assault you’ll find towards the end of the video:

http://www.youtube.com/watch?v=aNBkcpgPkuY&feature=player_embedded

It is in the 1st Circuit, and therefore would be affected by the appeal of the decision in the federal district court in Massachusetts that held DOMA section 3 unconstitutional.