Holder: Decision to Hold DOMA to Heightened Scrutiny Not Political

Jim Burroway

May 4th, 2011

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.

Timothy Kincaid

May 4th, 2011

I found Gowdy’s questioning to be reasoned, well articulated, and based in logic rather than animus. His points are, indeed, interesting. His argument that Holder’s decision was made absent judicial finding and therefor was based in politics is a strong one.

However, precedent is not the sole indicator of whether a decision is political or principled. And I agree with Holder that applying the test to anti-gay discrimination seems to unquestionably result in heightened scrutiny.

I’m glad we did not lead with screams about comparison to pedophilia or polygamy. That wasn’t what Gowdy was doing. He was talking about other areas in which marriage restrictions are not subjected to heightened scrutiny and those happen to be the other restrictions.

I was disappointed with Holder in that he seemed dismissive of states rights. Yet the Massachusetts case is SOLELY a states rights case.

Chris McCoy

May 4th, 2011

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.

Mr Gowdy forgets the 26 U.S. States where marriage between First Cousins is legal, and the Federal Government has no laws on the books to deny those families any federal benefits of marriage.


May 4th, 2011

Timothy Kincaid,

Whether or not heightened scrutiny should be applied to family members wishing to marry each other, or polygamists, has no relevance to whether it should apply in cases involving sexual orientation.

As Eric Holder said, there’s a 4 part test for whether heightened scrutiny should apply. If you apply that test to sexual orientation, the only conclusion you can draw is that it should apply.

Bringing up incest and polygamy was purely for emotive value.

enough already

May 4th, 2011

I had the impression that Gowdy was trying to lead Holder down the Primrose path – the same technique used against conscientious objectors during the Vietnam war:
You object to war?
Young Man: Yes.
I: All war?
Young Man: Yes.
I: Then you believe it was wrong for Lincoln to free the slaves?
Young Man: No.
I: Then you aren’t opposed to war?

He was stupid enough to think Holder would fall for it.

In the US, precedent counts, but it is not everything, as Timothy says. Frankly, I don’t see how they even get to rational, given the I, IV, XIV and XVI Amendments.

Nate W.

May 5th, 2011

@Timothy Kincaid,

The Massachusetts case is NOT solely a states’ rights case. It was decided on 14th Amendment grounds as well as 10th Amendment grounds. The 10th Amendment grounds invoked the logic of Usery, which has since been rejected by the Supreme Court. It is unlikely that the Tenth Amendment grounds will be upheld.

In short, Congress does have authority to define marriage for purposes of federal benefits–it’s a basic ancillary power of the power to distribute those benefits. Usery would limit this power based on some amorphous conception of “traditional state functions” that is not in the text of the Constitution.

Timothy Kincaid

May 5th, 2011


You claim that “Congress does have authority to define marriage for purposes of federal benefits” is an opinion.

However, in July of last year Judge Touro found in Commonwealth v. United States Department of Health and Human Services that Doma 3 was in violation of the Tenth Amendment and falls outside Congress’ authority under the Spending Clause of the Constitution.

I have found no indication that it was decided on 14th Amendment grounds.

Rob in San Diego

May 6th, 2011


Though I ALWAYS love your articles and articulation of words, I must say that your choice of words of child molestation and polygamy goes a bit far. Though he does say underage marriage and marriage to first cousins. Well OK, maybe not so much on the polygamy word since having sex with a first cousin I guess is still polygamy (can’t we change that to just immediate family members, like mom, dad, brother, & sister? Just a thought.)

But anyways, child molestation I think goes way above. Considering that some states allow you to marry with parent permission under 16 (which me personally I think the limit should be 16 flat), I would hardly consider sex with someone at age 16 as child molestation. I’m sure that there are a lot of readers who had sex at 16 with someone who was 18, is that considered child molestation?

Here is the problem with today’s generation. People get married and usually immediately have babies and create families. They get divorced and the family is dissolved. Because things just didn’t work out. They didn’t spend enough time getting to know each other before creating a family. If these people getting married at 16 and were to wait having kids for 2 years and get to know each other I think families can be stronger.

Timothy Kincaid

May 6th, 2011


I’m confused. This is not my commentary, it’s Jim’s.

And further, Jim notes that it is other blogs that are focusing on that aspect, not us. And my comment notes that this wasn’t Gowdy’s purpose.

Rob in San Diego

May 7th, 2011

OOps, that is so my bad, I got you confused after reading all the other posts. I didn’t catch him mentioning the other blogs using those words, again my bad.

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