The Meaning of Obama’s DOMA Decision

Jim Burroway

February 23rd, 2011

The obvious question behind today’s announcement that the Obama Administration would not defend the so-called “Defense of Marriage Act” in two cases filed last November is this: What does this mean today?

So far, not much. DOMA is still on the books, and it has not been declared unconstitutional. It does mean however that the Justice Department won’t defend section 3 of the statute which bars federal recognition of marriage of same-sex couples when that portion of the law is challenged in court. And so one possibiliy is that we may have a national patchwork of DOMA enforcement — it is kaput where Federal judges or their Appeals Courts have ruled against it, while it remains on the books where the courts have upheld the law or haven’t ruled. That would make, for example, the IRS’s administering the tax code a logitical nightmare, with some gay couples filing as married couples in some jurisdictions while others are barred from doing so elsewhere. Immigration can become a similar quagmire for transnational couples. Without, ultimately, either an appeal somewhere to the Supreme Court or repeal of DOMA itself, it’s going to be very intresting — and probably frustrating — for a very long time.

(Speaking of repeal, Sen. Dianne Feinstein has announced that she will introduce a bill into the Senate doing exactly that.)

One encouraging possibility to this decision however is that the Administration and Justice Department may have read the tea leaves on the current court and adjusted accordingly:

The announcement today does not overturn the law. That would take an act of Congress or a final finding by the judicial branch, probably the Supreme Court. But it changes the vector of the legal cases considerably. Privately, the administration believes that five justices of the Court, including Anthony Kennedy, the swing vote, would find parts or most of DOMA invalid if the federal government withdrew its arguments in defense of it.

Why the change now and not when the Justice Department was arguing to uphold DOMA before a Federal Judge in Massachusetts earlier last year? The answer hinges on the difference in legal precedent between the two sets of cases filed in different districts of Federal Court:

Citing an executive-branch duty to defend acts of Congress when plausible arguments exist that they are constitutional, the Obama administration had previously argued that legal challenges to the Defense of Marriage Act should be dismissed.

But those lawsuits were filed in circuits that had precedents saying that when gay people say a law infringes on their rights, judges should use a test called “rational basis” to evaluate that claim. Under that standard, the law is presumed to be constitutional, and challengers must prove that there is no conceivable rational government basis for enacting it, a hard standard for challengers to meet.

But the new lawsuits were filed in districts covered by the appeals court in New York. That court has no precedent establishing which legal test judges should use when evaluating claims that a federal law violates gay people’s rights.

That vacuum meant that the administration’s legal team had to perform its own analysis of whether gay people were entitled to the protection of a test known as “heightened scrutiny.” Under that test, it is much easier to challenge laws that unequally affect a group, because the test presumes that such laws are unconstitutional, and they may be upheld only if the lawmakers’ purpose in enacting them served a compelling governmental interest.

There’s one more thing that bears watching. Attorney Gen. Erik Holder dangled some political bait for DOMA’s supporters in Congress by pointing out that “Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” Will Boehner or any other DOMA supporters in Congress rise to the challenge of casting aside their “only interested in the economy” mantra to defend this law?

Timothy Kincaid

February 23rd, 2011

Jim,

..the IRS’s administering the tax code a logitical nightmare, with some gay couples filing as married couples in some jurisdictions while others are barred from doing so elsewhere.

This is already the case. As of the 2010 tax year, registered domestic partners in California (and other community property states) will file their federal income tax returns so as to recognize earned income as being equally divided between the two partners.

Recognizing or non recognizing marriages based on residency is a trivial matter compared to some of the tax code’s complexity.

And currently it’s much worse. Most marriage same-sex couples have to file as married on their state returns and single on their federal.

Dan

February 23rd, 2011

This is a very welcome move, but am I the only one who finds the timing of this decision suspiciously political?

Now that there’s a Republican House to intervene, the process is almost certainly going to be exactly the same–the law will be defended by the federal government. Only now, Obama gets rid of a political liability with his gay base and directs their ire back to the Republicans. Moreover, he knocks the Republicans completely off message on the economy, makes them talk about divisive social issues that they would prefer to ignore.

He takes himself completely out of any backlash the case may generate, no matter how the Supreme Court ultimately rules. If they rule against gay marriage, the Republicans and the Court take the blame from gay people, rather than Obama. If they rule in our favor, only the Court takes the heat from socially conservative people. Since DOMA had a robust defense from the Republican House, no one can blame Obama for the decision because of his refusal to defend the law.

And if, by some miracle, the Republicans decide not to defend the law either and the court rules in our favor, then Boehner, and not Obama, gets blamed by social conservatives. So no matter what the Republican leadership chooses to do, the social conservative and libertarian wings of the party will be angry with each other.

I must say, tactically, it is a masterpiece of political thinking. It completely solves a political problem for the administration and creates one for its opponents all in one fell swoop. Of course, the decision’s welcome, no matter the motivations behind it. But I have my very strong suspicions that if Nancy Pelosi were still Speaker of the House right now, this would not have been the administration’s choice.

Oscar Gecko

February 23rd, 2011

Thanks for the post. It helps make sense of all the media spins that are out there. This is the most thought out an logical post I have read to date.

MJC

February 24th, 2011

Dan, that is a superb analysis, IMHO.

BobN

February 24th, 2011

“suspiciously political?”

Obama campaigned on the positions he holds. He has repeatedly said he will fight for our legal rights, though not the word “marriage”. That he would methodically do so during his presidency, taking up one issue after the other in a calm, logical order is not “suspicious” nor is it “political”. It’s called “governing”.

And Obama didn’t choose the timing. The appearance of gay-rights cases in federal circuits that do not have rational-basis-only review as precedent is what triggered this development.

And so what if it is political? Given the fact that the “fiscally focused” GOP is attacking our legal rights in FOUR states simultaneously this month, would you prefer our side just sit back and take it? I wish this were being treated by the administration as a political fight.

Dan

February 24th, 2011

Bob,

I think the cases precedents concerning rational-basis only serve as a useful pretext for the administration’s decision. I doubt that they were the reason for it. They still could have gone on defending the law on “doing our duty” grounds if they had wanted.

In reference to your “so what if it is political?” question, the answer is, well, nothing. As I said twice, it’s still a very welcome development.

But the motivation behind the decision is crucial, I think, to how we evaluate the administration’s performance on gay issues. The Democrats’ rather pitiful performance last congress should not be forgotten. All in all, this change is largely symbolic, and should not get him off the hook. Yes, I too “wish this were being treated by the administration as a political fight”. The motivations behind this decision seem a rather obvious way of explaining their reticence.

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