Wednesday, February 23, 2011

The President’s Bold But Risky Move on DOMA

Oliver Willis reports that Pres. Obama’s Department of Justice has issued a formal decision indicating that it will no longer defend the odious Defense of Marriage Act in court. In a letter to Speaker of the House John Boehner, Attorney General Eric Holder writes:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

So, to translate from lawyer to English, what the Administration is talking about is this: Under the Equal Protection Clause of the Fourteenth Amendment, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” and the implicit “equal protection component” of the Fifth Amendment’s Due Process Clause, the government is prohibited from engaging in illegal discrimination. But equal protection under the Fifth and Fourteenth Amendments prohibits more than just obvious sins like race and sex discrimination; it prevents the government from drawing irrational distinctions between any groups of similarly situated citizens. So, when the government decides to treat Citizen A and Citizen B differently, it has to show that a “rational basis” exists to justify that disparate treatment. If, however, the government attempts to draw a distinction between Citizen A and Citizen B based upon a “suspect” classification like race or gender, it needs to demonstrate more than a mere “rational basis” for that type of discrimination because distinctions based upon “suspect” classifications like race and gender are, in equal protection parlance, subjected to “heightened scrutiny,” or “strict scrutiny,” in order to pass muster. As Attorney General Holder’s letter to the Speaker explains, where the government seeks to treat people differently based upon suspect classifications, “the government must establish that the classification is ‘substantially related to an important government objective.’ Clark v. Jeter, 486 U.S. 456, 461 (1988).” (For further explanation of the “rational basis” and “suspect classification” tests, see here and here.)

Moreover, while the certain of our federal Circuit Courts of Appeal have addressed the issue (as the Attorney General’s letter notes), the Supreme Court itself has yet to decide whether sexual orientation should be treated as a suspect classification like race or gender for purposes of equal protection analysis. For example, in Lawrence v. Texas, 539 U.S. 538 (2003), the Supreme Court struck down a Texas law criminalizing certain same-sex sex acts, but based its ruling on the Fourteenth Amendment’s Due Process Clause, rather than the Equal Protection Clause, holding, “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” In Romer v. Evans, 517 U.S. 620 (1996), on the other hand, the Court struck down on equal protection grounds a Colorado ballot initiative that voided state and municipal laws prohibiting discrimination on the basis of sexual orientation, holding that the ballot initiative “fail[ed] … even [the] conventional inquiry [i.e., the rational basis test].” Consequently, the Court did not need to address the question whether sexual orientation warranted treatment as a suspect classification.

In any event, the Attorney General’s letter to Speaker Boehner goes on to say that previous cases challenging DOMA had been filed in federal circuits where the Courts of Appeals had already determined that sexual orientation was not a suspect classification, and therefore the Administration felt it could argue that DOMA passed muster under the less stringent rational basis test. But these two new cases – Windsor and Pederson – were filed in the Southern District of New York and in the District of Connecticut, respectively, both of which fall within the jurisdiction of the Second Circuit Court of Appeals; and the Second Circuit has yet to determine whether sexual orientation should be treated as a suspect classification. So, because there is no binding precedent in the Second Circuit requiring the application of the rational basis test, the plaintiffs in these new cases could, and did, argue that sexual orientation should be treated as a suspect classification subject to strict scrutiny. And that led the Administration to take a hard look at the issue … which, in turn, led it to determine that these plaintiffs are correct: That sexual orientation should be treated as a suspect classification, and, consequently, that DOMA violates equal protection.

That may seem like a lot of legalese – and it is – but I cannot stress this point strongly enough: For a President and his Attorney General to state that sexual orientation should be treated like race and gender for purposes of equal protection of the laws represents an enormous sea-change in gay rights law. No President before now, and few, if any, federal courts, have ever suggested that government discrimination against gays and lesbians should be held to violate the Constitution in the same manner as discrimination on the basis of race or gender. You and I may think that (and if you don’t, you should), but for that to be the official policy of the Executive Branch – and for the Executive Branch to advocate that position in Court – is truly remarkable.

So, Pres. Obama, take a bow.

But here’s the hard part. Presidents have traditionally defended laws passed by Congress against legal challenges even if the president personally disagrees with those laws, because that’s generally the president’s job: To enforce laws passed by Congress irrespective of the president’s view of those laws. As the Attorney General explains:

[T]he Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

So, the Administration’s position is that even though one could make good faith (i.e., non-frivolous) arguments in favor of DOMA’s constitutionality, the Administration has concluded that those arguments are not “reasonable,” in its judgment, and therefore it is refusing to continue to defend the Act in court.

This is an extraordinarily tough call. I completely agree with the Administration’s analysis of the issue, from start to finish. I’m convinced that DOMA is unconstitutional, and I’m convinced that sexual orientation should be treated as a suspect classification for equal protection purposes. But knowing that there will be other constitutional fights on the horizon involving other statutes that I’d like to see upheld – most obviously, the Affordable Care Act (which was just recently upheld again, this time by a federal court in Washington, D.C., making three decisions in favor of the law and two against) – I can’t help but think the Administration has effectively thrown the gauntlet down, all but daring the next Republican administration to refuse to defend key elements of Pres. Obama’s legislative agenda against legal challenges. After all, Republicans claim the individual mandate in the Affordable Care Act is unconstitutional (an argument the latest District Court opinion flatly rejected), and a future Republican administration could argue, like Pres. Obama’s done with DOMA, that the arguments in support of ACA are unreasonable, making it “the rare case where the proper course is to forgo the defense of [the] statute.”

So rightly or wrongly, that’s a cat that likely cannot be put back in the bag.

I can’t judge Pres. Obama too harshly on this issue, though, because I know in my gut I probably would’ve done the same thing with DOMA. It just makes me think we sure as hell better get this guy reelected in 2012 if we want any of his successes to survive in court.

© 2011 David P. von Ebers. All rights reserved.


  1. Well, President Obama didn't really open the door to making the Executive Branch a prime mover in pronouncing and then acting upon its own beliefs and perogatives in deciding which laws or parts of laws were constitutional; the Bush administration had already flung that door wide open with its incontinent use of signing statements.

    With the near disappearance of the middle ground in American politics, practically no decision on matters of policy ever seems settled. Rather than having certain issues recede over the distant horizon as part of a broad consensus, we seem destined to fight every battle within all three branches of government--each see-sawing back and forth on a pivot point balancing electoral extremes.

    I have little faith in legislative elections that seat Senators like Rand Paul, who question civil rights laws passed 2 generations ago; nor do I trust a Chief Justice who gives lectures about a minimalist jurisprudence and then issues sweeping rulings that upend previously settled law--only, of course, when it suits his ideological leanings.

    Joel Lessing

  2. Thanks, Dave, for this excellent analysis. When I heard the news today, I was like, OK, this is great until we have another Republican in the White House.

  3. Well said, Joel. I think you’re right, and I suspect the Administration figures that no matter what Pres. Obama does on issues like DOMA, the next Republican president will refuse to defend any laws he or she doesn’t like (so long as they were passed under Obama). So, why not refuse to defend DOMA.

    Tim – That’s my fear, too; but I suspect they figure they have no control over what the next Republican administration will do anyway. Oh, and Tim, meet Joel (one of my oldest and best friends); and Joel, meet Tim (Master of the Podcast and all around great guy!).