Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs

Author: Colin P. Pool, Publications Editor, University of Cincinnati Law Review

The Supreme Court’s opinion in U.S. v. Windsor, [1] which struck down Section 3 of the Defense of Marriage Act (DOMA), has been criticized by many for a perceived “lack of clarity,”[2] or a lack of “parameters, . . . objective analysis, [or] guidance as to how to apply [it].”[3] These shortsighted characterizations misread Windsor. In fact, the Court’s analysis is based on long-established, if somewhat antiquated, equal protection jurisprudence: “careful consideration” triggered by the “unusual character” of a statute. With this standard’s reemergence, the possibility arises that future equal protection plaintiffs may be able to take advantage of it.

Windsor’s Application of Equal Protection

Part of the confusion about Windsor’s reasoning derives from the Court’s lengthy discussion of federalism principles in the context of family law.[4] Many have interpreted this discussion as the basis for its ultimate decision, but the Court discussed these issues only to establish that DOMA “depart[ed] from th[e] history and tradition of reliance on state law to define marriage.”[5] To the Court, this departure made DOMA a discrimination of an “unusual character” that merited “careful consideration.”[6] Once subjected to such “careful consideration,” the Court found that DOMA’s only purpose was to “demean” those in lawful same-sex marriages.[7] The Court found this purpose to be illegitimate,[8] and so DOMA was unconstitutional under the Fifth Amendment guarantee of due process.[9] The Court further noted that this guarantee included the equal protection of the laws.[10] Thus, the Court invalidated Section 3 of DOMA based on equal protection principles under a “careful consideration” standard of judicial review, and not because of federalism or substantive due process principles.

This is an odd equal protection decision because it does not follow the “three-tiered” approach typically used in equal protection analysis. The Court did state that Section 3 of DOMA served “no legitimate purpose,”[11] which is part of the black letter formulation of rational basis review: to survive judicial review, a statute must be “rationally related to a legitimate state interest.”[12] But it is clear from the opinion language that Windsor is not applying the traditional, deferential standard of rational basis that every law student learns. Under the traditional rational basis standard, legislation may be based on “rational speculation unsupported by evidence and empirical data” and will fail only if there is no “reasonably conceivable state of facts that could provide a rational basis for the classification.”[13] The Court’s investigation into DOMA’s legislative history and the law’s practical effects on same-sex couples and their children[14] shows that “rational speculation unsupported by evidence” was not the standard applied to DOMA.

Careful Consideration Is Analogous to “Rational Basis with Bite”

The Court’s “careful consideration” review is instead very similar, if not identical, to the higher form of scrutiny that commentators have dubbed “rational basis with bite.”[15] In past “rational basis with bite” decisions, the Court stated that it is using rational basis review, but then proceeded to apply a “more searching” review.[16] This higher standard entails a search for the actual purpose of the law, a careful evaluation of whether that purpose is permissible, and a review of the record for factual evidence of a bona fide correlation between classification and purpose.[17] The common feature that triggers this higher standard is a perceived animus against the targeted class.[18] Accordingly, this is the standard that the Court applied in Romer v. Evans, a pre-Windsor case where the Court invalidated a Colorado constitutional amendment that prevented homosexuals and bisexuals from receiving any protected status.[19]

Windsor departed from decisions like Romer because the Court did not perfunctorily state that it was applying rational basis review but then proceed to apply something greater. Instead, it stated that “careful consideration” was being applied to DOMA because it was “a discrimination of an unusual character.” And what made DOMA unusual was the federal intrusion into a traditional state domain: marriage. Unlike most equal protection decisions, then, the use of “careful consideration,” or “more searching” scrutiny, was not triggered by animus against a particular group, but rather by the fact that the statute’s reach was so “unusual.”

The Court’s Prior Use of Careful Consideration

The Windsor Court did not create the “careful consideration” standard out of thin air. It first emerged in the 1890 case of Bell’s Gap R. Co. v Pennsylvania, where the Court, in dicta, stated: “[C]lear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition.”[20] This language was cited by numerous Supreme Court decisions in the years following Bell’s Gap. Then, in a 1928 decision that invalidated a tax statute, the Court first used the formulation that was employed in Windsor: “Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”[21] In 1937, the Court again used this language to invalidate an economic regulation.[22]

The standard did not reappear until 1957, when, in Morey v. Doud, the Court invalidated a state economic regulation that lacked a sufficient means/ends nexus.[23] Morey was later overruled in part by City of New Orleans v. Dukes, to the extent that it stood for the proposition that a purely economic regulation should be subjected to higher equal protection scrutiny,[24] but the “careful consideration” standard itself was not abrogated. Since the majority of these decisions pre-date the famous “footnote 4” from U.S. v. Carolene Products,[25] the Court replaced the “careful consideration” standard—applied somewhat ad hoc in the Lochner-era—with its current “three-tiered” model in the post-Lochner era.

The fact that “careful consideration” historically served the role of the “more searching” review later typified by “rational basis with bite” decisions is an indication that the Windsor Court wanted to apply “more searching” scrutiny to DOMA; otherwise, it would have been forced to take the government’s justifications for the statute at face value, “unsupported by evidence and empirical data.” But as discussed above, what triggered a “more searching” scrutiny was not “animus,” but that the statute “unusually” intruded on a sphere of state sovereignty. Perhaps the Court wanted to apply higher scrutiny while dodging the question of whether homosexuals were a “suspect” or “quasi-suspect” class deserving of heightened scrutiny under the three-tiered equal protection approach and saw the “discrimination of an unusual character” standard as a backdoor to higher scrutiny.

Windsor’s Application to Future Plaintiffs

The fact that higher scrutiny was triggered by a statute’s “unusualness” begs the question: will other “unusual” statutes also trigger higher scrutiny? Windsor contains language that purports to limit its holding to the circumstances under consideration in that case,[26] but certainly same-sex plaintiffs will seek to exploit its language for all its worth—and rightly so. However, if the trigger for higher scrutiny is the unusual nature of the statute, the question becomes: how should same-sex plaintiffs proceed?

One possibility is attacking differences in how a state recognizes out-of-state marriages, a tactic that has been successfully utilized by Ohio plaintiffs in Obergefell v. Kasich.[27] Like most states, Ohio follows the common-law principle of lex loci celebrationis[28] and recognizes out-of-state opposite-sex marriages that would have been illegal under Ohio law.[29] In fact, Ohio applies this principle even when the celebrants left the state specifically to evade its restrictions.[30] A plaintiff could apply Windsor’s holding to the laws of a state that follows this rule for opposite-sex marriages, but refuses to follow it for same-sex marriages, in the following manner:

Laws which refuse to recognize valid out-of-state same-sex marriages “[reject] the long-established precept” that the state in question will recognize valid out-of-state marriages that would have otherwise been illegal in that state under the lex loci rule. This departure makes such laws “[d]iscriminations of an unusual character” which “especially suggest[s] careful consideration . . . .” Such “careful consideration” will show that the state laws’ “demonstrated purpose is to . . . disparage and to injure those whom [other states], by [their] marriage laws, sought to protect in personhood and dignity.” This is not a legitimate purpose for government classification, and thus the challenged state laws cannot survive judicial review.

The “unusualness” trigger could likely be applied in other contexts as well. Dukes indicates that it may not carry much weight in the context of economic regulations—though some lower federal courts have begun applying higher scrutiny to economic regulations[31]—but since Windsor’s language is not explicitly limited to “discriminations of an unusual character” against gays and lesbians, the holding may signal a revival of the standard for equal protection jurisprudence generally. Future equal protection plaintiffs would therefore be well-advised to include a “discrimination of an unusual character”/“careful consideration” argument in their briefing.


Windsor will be remembered as a landmark decision in the struggle for same-sex marriage rights. What remains to be seen is whether it will impact other areas of the law as well. The history and broad language of the “careful consideration” standard indicate that it is malleable enough to apply throughout equal protection jurisprudence. Equal protection plaintiffs should therefore advance the “discrimination of an unusual character”/“careful consideration” argument unless and until courts indicate that it is improper to do so.

[1] 133 S. Ct. 2675 (2013).

[2] Scott Lemieux, Two Cheers for the Supreme Court on LGBT Rights, The American Prospect (June 26, 2013),

[3] Josh Gerstein, The DOMA Decision Ripple Effect, Politico (June 26, 2013, 8:49 PM),

[4] Id. at 2689-93.

[5] Id. at 2692.

[6] Id. at 2692 (citing Romer v. Evans, 517 U.S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928))).

[7] Id. at 2693, 2694, 2695-96 (internal citations omitted).

[8] Id. at 2696.

[9] Id. at 2695.

[10] Id.

[11] Id. at 2696.

[12] Pennel v. City of San Jose, 485 U.S. 1, 14 (1988).

[13] F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 315 (1993).

[14] United States v. Windsor, 133 S. Ct. 2675, 2693-95 (2013).

[15] See, e.g., Gail Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779, 798-800 (1987).

[16] City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 460 (1985) (Marshall, J., concurring).

[17] Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 359, 373 (1999).

[18] E.g., the mentally handicapped (Cleburne), gays and lesbians (Romer v. Evans), children of illegal immigrants (Plyler v. Doe), unmarried couples (Eisenstadt v. Baird).

[19] Romer v. Evans, 517 U.S. 620 (1996). See also Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating a Texas statute which criminalized consensual sodomy). The Court did not articulate what standard it was using to invalidate the law in Lawrence. It is presumed that the Court was applying so-called “rational basis with bite.” See Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L. Rev. 2769, 2770 (2005). The Court also found that the statute violated substantive due process rather than equal protection. However, Justice O’Connor’s concurrence used an equal protection theory, Lawrence, 539 U.S. at 579, and, regardless, the rational basis standard for substantive due process is identical to the standard used for equal protection.

[20] Bell’s Gap R. Co. v. Com. of Pennsylvania, 134 U.S. 232, 237 (1890) (emphasis added).

[21] Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928).

[22] Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S. 459, 461-62.

[23] Morey v. Doud, 354 U.S. 457, 464 (1957).

[24] City of New Orleans v. Dukes, 427 U.S. 297, 306 (1976).

[25] United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

[26] United States v. Windsor, 133 S. Ct. 2675, 2696 (2013) (“This opinion and its holding are confined to those lawful marriages.”).

[27] Obergefell v. Kasich, No. 1:13–cv–501, 2013 WL 3814262 (S.D. Ohio, July 22, 2013).

[28] The “law of the place of the ceremony” governs. Black’s Law Dictionary (9th ed. 2009).

[29] See, e.g., Courtright v. Courtright, 11 Ohio Dec. Reprint 413 (Ohio Ct. C.P. Franklin Cnty. 1891) aff’d without opinion, 53 Ohio 685 (Ohio 1895); Hardin v. Davis, 16 Ohio Supp. 19 (Ohio Ct. C.P. Hamilton Cnty. May 18, 1945); Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630 (Ohio App. 1930); Peefer v. State, 182 N.E. 117 (Ohio App. 1931); Mazzolini v. Mazzolini, 155 N.E.2d 206 (Ohio Sup.Ct. 1958)).

[30] See 45 Ohio Jurisprudence 3d, Family Law, § 11.

[31] This topic is discussed in detail in a forthcoming note by the author: An “Easy Case” Makes Bad Law: The Misapplication of Heightened Scrutiny in Maxwell’s Pic-Pac v. Dehner (forthcoming, vol. 82.1, U. Cin. L. Rev.).



Up ↑

Skip to content