On May 31, 2012, the U.S. Court of Appeals for the First Circuit in Massachusetts v. U.S. Department of Health & Human Services held Section 3 of the Defense of Marriage Act unconstitutional. In doing so, the court declined to extend heightened scrutiny to sexual preference classifications and instead relied on a more searching form of rational basis review. This Comment argues that the First Circuit’s equal protection analysis is flawed because it purports to apply Supreme Court precedent, but fails to do so faithfully. It also argues that the court could have reached the same result and more effectively insulated its holding from attack by designating sexual orientation a suspect or quasi-suspect classification.
Nicholas Drew, A Rational Basis Review That Warrants Strict Scrutiny: The First Circuit’s Equal Protection Analysis in Massachusetts v. U.S. Department of Health and Human Services, 54 B.C.L. Rev. E. Supp. 43 (2013), https://lawdigitalcommons.bc.edu/bclr/vol54/iss6/5