Box Turtle Bulletin

Holder: Decision to Hold DOMA to Heightened Scrutiny Not Political

Rep. Trey Gowdy (R-SC) grilled Attorney General Eric Holder earlier this week on the Justice Department’s decision to hold the Defense of Marriage Act to heightened scrutiny in Federal Courts. From that questioning, blogs led with screaming headlines that Gowdy compared same-sex marriage to child molestation and polygamy. He does go there, but doesn’t go very far. More interesting to me is Holder’s discussion of how they came to the decision to hold DOMA to heightened scrutiny. In the process, he cited another case, relating to Miranda rights, in which the Justice Department chose to argue against the constitutionality of a bill passed by Congress. The fact that Gowdy raised that example himself opened the way to Holder’s knocking down the assertion that the Justice Department’s decision was a dramatic departure because of its refusal to defend a bill passed by Congress.

Here is a rush transcript of the exchange:

Gowdy: You do not disagree that Congress has the authority to define marriage. Your position is not that the Interstate Commerce clause doesn’t allow us… you’re not making a states rights argument. You’re making an  argument based on the three tiers of constitutional scrutiny, right?

Holder: Well, typically marriage has been defined as something that has been seen as something that has been a state issues as opposed to the federal government.

Gowdy: It is, but there are thousands of instances where Congress has to define what the family is in order to be instructive with respect to other statutes though. You’re not challenging that Congress has the authority to define marriage.

Holder: Well, I think we may be quibbling here, but not define marriage as much as to define in federal statues in how married people are to be treated, something along those lines. I think I would agree on that regard.

Gowdy: Alright. And would you agree with me that the rational basis test is the appropriate test to be used with respect to consanguinity, the marrying of family members? That’s the appropriate test, right? Rational basis? You’re not arguing for a heightened level of scrutiny on whether or not cousins can marry each other.
 
Holder: No, I would not argue that. I don’t know if there’s law on that, but again off the top of my head, I’m not sure that you would need heightened scrutiny standard in that regard.

Gowdy: And age restrictions. We wouldn’t need a heightened level scrutiny with respect to age restrictions.

Holder: No, there’s a four-part test I have right here that I don’t think you’d have a heightened scrutiny as well.

Gowdy: Alright, and we don’t need intermediate or heightened level of scrutiny with respect to polygamy, right?

Holder: Yea, I would think not.

Gowdy: And since Lawrence, two courts of appeals have upheld a rational basis test for sexual orientation. So that’s two that upheld rational basis, one that has applied a heightened level of scrutiny. So my question is why would you single out the one court of appeals that has applied a higher level of scrutiny, ignoring the two that apply the rational basis test? That just strikes me as a political calculation and not a constitutional calculation.

Holder: No, not a political calculation. I think that what we had to do was look at… You know, the court of appeals make decisions that sometimes the Department of Justice will disagree with, to the extent that court of appeals have taken different views of what the appropriate level of scrutiny is. We think those courts of appeals are wrong. The Supreme Court will ultimately have to decide against this issue. But I want to assure you and everybody else that the decision that we made with regard to DOMA did not have a political component to it. It was a legal determination.

Gowdy: I want to believe you. I really do. I mean that earnestly. When I was in AUSA, there was a court of appeals that said law enforcement officers didn’t have to read Miranda warnings anymore. It was an unusual opinion and it was one we didn’t follow. It was one court of appeals that ruled that way. There are, heavens knows, the Ninth Circuit Court of Appeals is presumptively wrong. So we don’t change our course of conduct when Ninth Circuit … I said that, not you, right…. When the Ninth Circuit Court of Appeals comes up with something crazy, we don’t change our course of action. It is difficult to explain why it is not a political calculation or decision when two courts of appeals post-Lawrence have said the rational basis test is the one that applies and only one has argued for a heightened level of scrutiny. It’s tough to see how that’s not political.

Holder: I think one example… And I in this one, you know, but I think my memory serves me correctly that when it came to the Dickerson case, the Fourth Circuit indicated that that statutes that had passed had essentially overruled Miranda. I think the Fourth Circuit said that that was a constit… that that statute was in fact constitutional. The Justice Department argued against that statute, said that it was unconstitutional before the Supreme Court. So you had the Justice Department both arguing in the Supreme Court against a statute passed by Congress, and also taking on a federal court of appeals. So there’s a basis, there’s history to these kinds of actions that we took with regard to DOMA. It’s unusual. It’s rare, but it happens on occasion.

Gowdy: But you would agree the Supreme Court has never applied a heightened level of scrutiny to sexual orientation. So there’s no precedent from the Supreme Court,
and only one of the courts of appeals has even suggested there’s a heightened level of scrutiny, while two have not.