Guest Post

by Brian Moulton, Legal Director, Human Rights Campaign. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny. 

To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.   

In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.    

by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship.