-2-conclude, as it is suggested we should, that the Supreme Court of the United States would have1held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it2was required to accept the appellate challenge. The Supreme Court made a merits decision, and3has never walked away from it or ever suggested that its disposition elided a merits4determination on some procedural basis. It has further instructed us that such a disposition,5albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on6the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational7reasons exist to promote the traditional institution of marriage.
dictates my decision.8Furthermore, it is argued here that we are to disregard this binding precedent and the9traditionally applicable rational basis standard of review and, instead, now create a new type of 10suspect classification requiring a heightened level of scrutiny in respect of the federal definition11of marriage. The Supreme Court has never done so, while reminding us to be wary of creating12any new such classification and itself not having created any in decades. I believe it would be13imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have14not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently,15the First Circuit went to the extreme of creating a new, increased level of rational basis analysis.16This appears to be the first case in which this Court is asked to do the same or more, and the17majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage18as between a man and a woman. The discrimination in this case does not involve a recognized19suspect or quasi-suspect classification. It is squarely about the preservation of the traditional20institution of marriage and its procreation of children. DOMA centers on legitimate state21interests that go beyond mere moral disapproval of an excluded group. DOMA’s classification is22
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