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Posts for December, 2012

Supreme Court Silent On Marriage Cases (Updated)

Jim Burroway

December 3rd, 2012

The U.S. Supreme Court issued its Orders this morning, with none of the marriage-related cases making the list. This likely means that at least some of those cases will be scheduled for another Conference on Friday morning. It is not unusual for the Court to require several Conferences before deciding whether to take a case. The delay for some of the cases — the Prop 8 appeal could be one candidate — could also mean that the court has denied certiorari for one or more of the cases and is awaiting a dissent from one of the justices.

Update:  Hollingsworth v. Perry (the Prop 8 case), Windsor v US, US vs Windsor, BLAG v Gill, HHS v Massachusetts, OPM v Golinskey, Pedersen v OPM, OPM v Pedersen, (the DOMA cases) and Brewer v Diaz (the Arizona domestic partnership benefits case) have all been moved to the December 7 conference according to their respective docket pages. (Note: Some of the DOMA cases have two dockets because representatives from both sides have appealed to the Supreme Court.) Chris Geidner says that if they don’t make up their minds on December 7, the next scheduled Conference is January 4.

Update: Lambda Legal’s Jon W. Davidson explains the complexity facing the Supreme Court, with each case bringing with it its own unique set of arguments and prcedural questions:

Justice Kagan needs to decide whether to recuse herself from GLAD’s Gill v. OPM case. The ACLU’s Windsor v. United States case involves the additional wrinkle of how New York treats marriages entered in Canada. Lambda Legal’s Golinski v. OPM case, GLAD’s Pedersen v. OPM case, and Windsor, all came to the Supreme Court in an unusual way—with requests for review having been filed before decisions from the intermediate appellate courts were issued. And there have been questions raised about the right of various parties to ask for Supreme Court review because of who the party asking is or because that party won below.

The Supreme Court has to decide not only which challenge to DOMA to hear, but also whether to hear the Perry or Diaz cases now, or wait until after a DOMA case is decided. Although the questions in these two cases are different from the DOMA challenges, a decision in a DOMA case that laws that discriminate based on sexual orientation should be given heightened scrutiny by the courts and presumed unconstitutional could make the Perry and Diaz cases easier to decide, and the Court might choose to hold one or both of those cases for that reason. If Perry is to be considered now, the justices may direct the parties to brief only the narrow ground decided by the Ninth Circuit that involves the unusual circumstances of California’s marriage ban or broader grounds as well, in addition to the question of whether or not the proponents of Prop 8 have the right to appeal. In Diaz, the Court needs to consider whether to get involved at this point (wading in on whether a preliminary injunction was properly issued keeping insurance coverage in place while the case proceeds), when the case is not yet fully resolved at the trial court. 

“The Most Significant Cases These 9 Justice Have Ever Considered, And Probably Will Ever Decide”

Jim Burroway

November 30th, 2012

That’s according to SCOTUSblog’s publisher Tom Goldstein:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

While the cases are historic, the justices are being called upon to judge them today:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

You’ve got to read the whole thing. He’s right: this is history before our eyes, whether it winds up being Dred Scott or Loving v. Virginia.

Some thoughts on the Massachusett and Gill appeals ruling

Timothy Kincaid

May 31st, 2012

Some initial thoughts upon reading the ruling (supplemental to Jim’s excellent write-up)

1. “…the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.”

You can almost hear the sarcasm dripping off the page of the ruling. Basically, he’s saying that it’s hard to assess the rationale when there was little rationale at all. Later Boudin rejects the presumption of ill intent, but it’s clear that he was not impressed by the thoughtless way in which the bill was enacted.

The rush to pass DOMA coupled with the premise that “everyone knows marriage is a man and a woman” plus the wisdom of some legislators not to go on record with any legal arguments in its favor may have proven to be its downfall. Having almost no hearing on the matter limited the number of possible benefits of the bill that were proposed.

2. It’s a bit interesting that the court tossed out the rational v. heighten review analysis. Instead they found a new methodology of thinking which applies intensified scrutiny to “historically disadvantaged and unpopular” groups, whether or not they have been assigned suspect classification.

This is fascinating and (political junkies, this is for you) an interesting take on the Republican think tank arguments that law and policy ought to be blind to group politics. (This sounds contradictory, so stick with me). It sounds a bit like Boudin is saying that matters should not be based on whether the group before him is a traditionally recognized minority as approved by court precedent, but whether they are a group that has experienced disadvantage.

If so, this is a rather significant legal shift. If this stands, it could be a huge legal precedent to any group that experiences hostility based discrimination.

3. This is the first time that courts have addressed Federalism in relation to DOMA. I’ve long thought this was the strongest line of argument, but the First Circuit did not see it those terms. It may not have been as compelling to the court as I have thought, but it is nevertheless a consideration and increases the intensity of the review.

“…but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

4. Evidently some of you have been invading Judge Boudin’s dreams because the following statement is quite similar to comments made here with regularity:

The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.

Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

Darn those radical activist judges for using straight-forward logic.

5. I learned a new word: encomia.

en·co·mi·um
n. pl. en·co·mi·ums or en·co·mi·a
1. Warm, glowing praise.
2. A formal expression of praise; a tribute

6. The court lays out the only way in which DOMA is permissible: blind deference.

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.

7. And again the matter is stayed.

Yes, this is the correct and proper action when a case is unquestionably going to be appealed up the ladder. But it truly is frustrating and is a hardship on real families. And I rather doubt that it will be any time soon that DOMA finally reaches its (rather likely) death.

Federal Appeals Court Rules DOMA Unconstitutional

Jim Burroway

May 31st, 2012

The First Circuit Court of Appeals has ruled that Section 3 of the Defense of Marriage Act, the section that bars federal recognition of legal marriages granted by the states, is unconstitutional. The three-judge panel ruled unanimously to upholds Federal District Judge Joseph Tauro’s 2010 decision.

The decision is in response to two separate cases which were combined by the lower court. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to. The appeals court heard oral arguments for the two cases in April.

Judge Michael Boudin, a President George H.W. Bush appointee, wrote for the court:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

The court found that the plaintiff’s (Gill, Commonwealth) equal protection claims cannot stand up to rational basis. The Justice Department urged elevating the considerations of the case to a suspect class, but the Appeals court made clear that they were unwilling to establish that precedent in this case. They also found that doing so was unnecessary:

Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions–not classic rational basis review–that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).

In a move that is reminiscent of the Ninth Circuit Court’s ruling that Prop 8 was unconstitutional, The First Circuit was also careful not to consider claims that they felt were unnecessary, and thus narrowed the basis of the ruling. But in a departure from the Ninth Circuit Court, the first Circuit said that while they found DOMA unconstitutional, they did not rest any part of their ruling on claims of hostility to homosexuality:

In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. …The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

As is customary, the First Circuit panel stayed its ruling in anticipation of an appeal to the U.S. Supreme Court.

Federal Appeals Court Hears Arguments on DOMA’s Constitutionality

Jim Burroway

April 4th, 2012

“Historic” is the word being tossed around as the First Circuit Court of Appeals hears oral arguments today in Boston on the constitutionality of the Defense of Marriage Act, the first time the question of DOMA’s constitutionality has been brought to the Appeals Court level.

The case before the First Circuit Court is actually the appeals of two cases which were combined at the trial court level, where DOMA was declared unconstitutional. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to.

Because oral arguments before the court involved two cases, and because the Obama administration announced that the Justice Department would not defend DOMA under heightened scrutiny, there were actually four sets of lawyers:

  • Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs in the Gill case.
  • Massachusetts Attorney General Civil Rights Division chief Maura Healey, representing Massachusetts in the Commonwealth case.
  • Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group which picked up the task of defending DOMA when the Justice Department announced that they would no longer do so.
  • Acting Assistant Attorney General Stuart Delery, on behalf of the U.S. Justice Department.

Metro Weekly’s Chris Geidner attended the hearing and describes a surprise move from the Justice Department:

In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation. [Emphasis added]

When the Justice Department made their announcement in 2011, they argued that DOMA should be evaluated under heightened scrutiny, and under that standard, DOMA was indefensible because it discriminates against gay people. Now they are saying it is indefensible regardless of the level of scrutiny the court wishes to apply.

On Clement’s part, he made a rather startling argument before the court:

Although DOJ, the Commonwealth of Massachusetts and GLAD argues that DOMA was motivated by anti-gay sentiment — “animus,” in court lingo — Clement argued that the impact of DOMA was not all bad.

“In some cases,” he said, “it’s a net financial benefit to the same-sex couple; in some, it’s not.”

Is he actually arguing that DOMA, in some cases, is in the best interests of same-sex couples? Because if he is, he’s taking a rather paternalistic stance. The issue is quite simple: that if straight couples have the option of deciding for themselves whether marriage is in their best interests, that same option should be applied to same-sex couples as well. Clement appears to have argued that only Congress can decide that for same-sex couples, while opposite-sex couples are granted the autonomy for making that decision themselves — even if it is to decide to enter a marriage only lasting 55-hours.

Washington Blade’s Chris Johnson, who also attended today’s hearing, added this observation about Clement’s arguments:

Clement offered for many reasons for why DOMA should be upheld — among them was saying the opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.

…But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.

“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.

Those were just three of the issues argued today that really jumped out at me as significant. Chris Geidner’s write-up along with Chris Johnson’s both are worth reading to get the full measure of today’s oral arguments.

The Daily Agenda for Wednesday, April 4

Jim Burroway

April 4th, 2012

TODAY’S AGENDA:
First Circuit Court of Appeals Hears Oral Arguments in DOMA Challenges: Boston, MA. Two cases will be argued today before a three-judge panel of the First Circuit Court of Appeals. The first case, Gill v. the Office of Personnel Management, was brought by several same-sex couples married in Massachusetts arguing that Section 3 of DOMA, which bars the Federal government from recognizing their marriage, violated their equal protection rights under the US Constitution. That case was combined with a second case, Commonwealth of Massachusetts v. United States Department of Health and Human Services, in which the state of Massachusetts sued the US government alleging that the state was placed in a position of either discriminating against a group of married residents on one hand or losing federal funding for programs in which the federal government dictates who is legally married on the other. On July 8, 2010, Federal District Judge Joseph Tauro ruled in both cases that section three of DOMA was unconstitutional. The Justice department then filed appeals to those decisions, but that was before President Barack Obama determined in 2011 that Section 3 of DOMA was unconstitutional and stopped defending the law in court. The House Republican leadership, with their 3-2 majority on the Bipartisan Legal Advisory Group (BLAG), decided to take up DOMA’s defense instead.

Participating in today’s oral arguments will be BLAG’s attorney, Paul Clement, who will try to defend DOMA’s constitutionality on behalf of Congress. Also participating will be the Justice Department’s Civil Division’s acting chief Stuart Delery, who will support the Justice Department’s finding that DOMA is unconstitutional under heightened scrutiny. Gay & Lesbian Advocates and Defenders (GLAD) Civil Rights Project Director Mary Bonauto will argue on behalf of the Gill v OPM plaintiffs, and Massachusetts Attorney General’s Civil Rights section head Maura Healy will represent the commonwealth in their case. Oral arguments get underway at 10:00 a.m. before a three judge panel consisting of Chief Judge Sandra Lynch (a Clinton appointee), Judge Michael Boudin (appointed by George H.W. Bush) and Judge Juan Torruella (appointed by Ronald Reagan).

Celebrations This Weekend: Spring Diversity, Eureka Springs, AK; Mr. Gay World, Johannesburg, South Africa; White Party, Palm Springs CA

TODAY IN HISTORY:
Anita Bryant Endorses Imprisoning Gays For 20 Years: 1978. Newspapers across the country got a bit of a tease from Playboy, which released a few tantalizing tidbits from an interview with anti-gay activist Anita Bryant that would appear in the May 1978 edition. In a small preview released to the wire services, Bryant was quoted as suggesting that sending gays to prison for 20 years “might make them think twice, especially the young ones. Any time you water down the law, it just makes it easier for morality to be tolerated.” She went on: “Why make it easier for them? I think it only helps to condone it and make it easier for kids who wouldn’t be so concerned if it was a misdemeanor, whereas a felony might make them think twice, especially the younger ones.” When asked whether prison life might not be conducive to homosexuality, she answered, “They’ll have plenty of time to think. Just because prisons are corrupt and not doing the right thing in rehabilitation because they don’t have enough emphasis on spiritual emphasis doesn’t mean there should not be a strong punishment for that.”

TODAY’S BIRTHDAY:
Anthony Perkins: 1932. Best known for his role as the sexually-ambiguous Norman Bates in the Alfred Hitchcock classic Psycho, Perkins’s own sexuality was the subject of rumors throughout his career. He shared a long-term relationship with fellow 1950s teen idol Tab Hunter (who discussed their time together in his 2005 memoir Tab Hunter Confidential) and another six-year relationship with dancer/choreographer Grover Dale before Perkins finally married Berry Berenson in 1973 in a bid to keep his name out of the scandal sheets. His gay friends though the marriage was bizarre, but Perkins seemed to have made the best of the situation, and by all accounts he was devoted to Berenson and their two children. But whether Perkins remained sexually faithful during the marriage, however, is doubtful. He died on September 12, 1992 from complications of AIDS with his wife by his side, two years after the National Enquirer outed him both as gay and as a person with AIDS. His public acknowledgment of his disease came posthumously in a statement dictated to his sons and released to the public. His private acknowledgement of his sexuality, he took with him to his grave. In a strange twist of fate, his widow died on September 11, 2001, on American Airlines flight 11 when it was hijacked and crashed into the North Tower of the World Trade Center.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

New York’s new role

Timothy Kincaid

July 26th, 2011

One of the consequences of marriage equality that doesn’t get much attention in the debate is the way in which it impacts a state’s involvement in lawsuits. And yet, this is no small matter.

States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.

But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.

This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.

And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.

Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.

And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.

Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.

But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).

As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.

From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.

This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.

Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.

Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.

But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)

“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”

Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.

Boehner Announces Defense of DOMA

Jim Burroway

March 9th, 2011

TPM reports that House Speaker John Boehner (R-OH) has issued a statement announcing that the House will intervene as a third party defendant in court cases challenging the constitutionality of the Defense of Marriage Act. TPM quotes from the statement:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said in the statement. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

Of course, the president didn’t determine the law’s unconstitutionally unilaterally. The administration instead determined that they could not defend the law’s constitutionality based on the facts and heightened scrutiny. The administration also threw some bait in Boehner’s direction, pointing out that the House was perfectly within its rights to argue in court that that the law did not result in discrimination against LBGT couples. Boehner dropped the “only interested in the budget” charade to take the challenge. This should be fun.

The Hill reports that the action was taken based on a party line vote following a thirty-minute meeting, with Boehner joining House Majority Leader Eric Cantor (R-VA) and House Majority Whip Kevin McCarthy (R-CA) supporting the move. House Minority Leader Nancy Pelosi (D-CA.) and House Minority Whip Steny Hoyer (D-MD) voted no.

Boehner to Announce DOMA Defense by Week’s End

Jim Burroway

February 28th, 2011

So much for focusing on the budget:

Asked if the House would appoint a special counsel to defend the law itself in the White House’s stead, Boehner said, “It’s an option being considered” and added that he would likely have a decision on how to proceed “by the end of the week.”

“I’d be very surprised if the House didn’t decide that they were going to defend the law,” Boehner said. Surprisingly, he suggested that the move was likely beneficial to Democrats in the next election.

House Speaker John Boehner also spoke to David Brody of Pat Robertson’s Christian Broadcasting Network over the weekend:

David Brody; “Rick Santorum says that the Speaker of the House should appoint a counsel representing the House of Representatives to take up the case and argue DOMA in federal court. Is that a good idea?”

Speaker John Boehner: “It’s an option being considered.”

David Brody: ”And on these options the bottom line is that something is going to happen from the House and something will get done?”

Speaker John Boehner: “I’d be very surprised if the House didn’t decide that they were going to defend law.”

David Brody: “How frustrated are you with this President? Do you believe it’s an overreach to the point where it gets back to the Czar issue to a degree?”

Speaker John Boehner: “It strikes me as something that’s just as raw politics as anything I’ve seen knowing that a lot of people who believe in DOMA are probably not likely to vote for him and pandering to the other side on this issue.”

Obama’s DOMA Strategy “Deep and Cynical”?

Jim Burroway

February 25th, 2011

Jason Kuznicki at the Cato Institute wrote, “Jim Burroway hints that Obama’s strategy here is both deep and cynical.” If there is a hint of that in what I wrote, then that hint was the furthest thing from my mind. Given the particular circumstances that arose in the two cases that brought about this announcement (specifically that there is no legal precedent in this particular circuit of Federal Court as to which level of scrutiny is appropriate for DOMA challenges), I think the administration’s determination is highly principled and well-supported, or, in Kuznicki’s word, “deep” (although he may have meant that differently than I do).

It does not, however, mean that there are no potential political repercussions emanating from the announcement, and my pointing them out was not based on a suspicion of a “cynical” motive. Surely, Holder did dangle a political carrot in front of Boehner (and, more broadly, in front of social conservatives who would surely urge Boehner to grab it) by pointing out that Congress can decide to defend DOMA. And there’s no doubt that most Democrats would strategically, if quietly, welcome just that very move, which would then be taken as evidence that the GOP isn’t serious about focusing exclusively on the deficit. — which would be the very definition of cynicism. But that latter part isn’t evidence of cynicism behind the Administration’s legal decision itself. It’s simply an observation that there are rippling repercussions from the decision; some of them are political and some of the political reactions will also be cynical — as if anyone would be surprised by that. I don’t mind Kuznicki’s putting the cart before the horse; he sees things differently from me. I would just rather he hadn’t tried to put my words in the horse’s mouth.

Will Obama’s DOMA Decision Backfire?

Jim Burroway

February 25th, 2011

That’s what Daily Beast’s Eve Conant and Daniel Stone seem to think after talking with ant-gay activists who see an opening in the Administration’s new stand on defending the so-called “Defense of Marriage Act” in the courts.

By failing to defend marriage, the administration may open the door for those passionately opposed to gay marriage to have what they feel they’ve been lacking: a stronger legal voice. In Massachusetts, which is also in the midst of a legal challenge to DOMA, traditional marriage activists, after the initial shock, are finding themselves equally emboldened. Kris Mineau of the Massachusetts Family Institute says, “It’s a horrible situation when the president and the attorney general refuse to carry out their constitutional duties. We are now asking Congress to do its job.” But he says the law, in his view, “says that under unusual circumstances people who are friends of the court can participate in oral arguments.” Previously barred from doing so in the state’s key DOMA challenge, Gill v. Office of Personnel Management, he says, his legal team is working on documents to take part in oral arguments “with real resources and with people who have a passion for success” in battling gay marriage. Mineau says the government’s defense of DOMA thus far “has amounted to something along the lines of ‘we’re personally against DOMA but we’re here today to defend it.’” That watered-down approach, he says, left traditional marriage supporters feeling hopeless.

If the Justice Department’s stand that DOMA should fall under heightened scrutiny holds sway in the courts, then groups like Massachusetts Family Institute with their impassioned position against same-sex marriage would actually prove the Administration’s case under one important aspect of heightened scrutiny: a history of discrimination. We already saw how well this played out so far in California, where widespread evidence of discrimination and expressions of anti-gay bigotry became important pivots on which Federal Judge Vaughn Walker’s decision rested.

On the other hand, Conant and Stone argue that the GOP-led House could try to take the case completely out of the DOJ’s hands altogether so that they would not even be present in court to argue for heightened scrutiny:

Committee lawyers have been summoned early next week to meet with Boehner and other officials to discuss their options. One leading strategy would be to stage a sort of legislative intervention, in which Congress’ counsel would remove the Justice Department’s authority to defend DOMA.

Administration officials aren’t opposed to that idea. In a letter to Boehner, Attorney General Eric Holder suggested Republican leaders appoint more lawyers to defend the law themselves, without Justice attorneys.

I see two potential problems here: If Congress were to intervene and remove DOJ’s authority to defend DOMA, wouldn’t the Democratic-controlled Senate have to go along with it? And secondly, as I read Attorney General Eric Holder’s letter, I don’t get the sense that he agrees that DOJ should be removed altogether from defending DOMA or that Republicans leaders should defend the law themselves “without Justice attorneys,” as if Justice would be willing to voluntarily step aside. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation,” he clearly added, after acknowledging that Congress can play a role in defending the statute.

On DOMA, Social Conservatives Howl While Pols Shrug

Jim Burroway

February 25th, 2011

By virtually any measure, the Obama Administration’s announcement that they will no longer argue that the so-called “Defense of Marriage Act” is constitutional portends a monumental shift, with repercussions we are all still trying to sort out. Anti-gay activists are, predictably, howling with rage, calling on Congress to intervene. But as we noted, House speaker John Boehner refused to take the bait, and is instead sticking to his promised focus on slashing the budget. The New York Times noticed similarly tepid reactions among many other political conservatives:

In the hours that followed, Sarah Palin’s Facebook site was silent. Mitt Romney, the former governor of Massachusetts, was close-mouthed. Tim Pawlenty, the former governor of Minnesota, released a Web video — on the labor union protests in Wisconsin — and waited a day before issuing a marriage statement saying he was “disappointed.”

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Asked if Mitch Daniels, the Republican governor of Indiana and a possible presidential candidate, had commented on the marriage decision, a spokeswoman said that he “hasn’t, and with other things we have going on here right now, he has no plans.”

Former Arkansas governor Mike Huckabee, who is also believed to be a presidential contender, is among the few to come out strongly against the Administration’s decision, calling children being raised by LGBT parents “our little guinea pigs.” Mark McKinnon, a Republican strategist for President Bush’s 2004 campaign which deployed marriage as a major wedge issue to turn out conservative voters, may well be right: “The wedge has lost its edge,” he told the Times. Of course, there’s still plenty of time for that to change between now and 2012.

DOJ will “cease to defend” DOMA in Gill and Commonwealth cases

Timothy Kincaid

February 25th, 2011

GLAD is announcing:

The Department of Justice followed Wednesday’s withdrawal from two DOMA cases in the Second Circuit, including GLAD’s Pedersen v. OPM by notifying the clerk of the First Circuit that they will also “cease to defend” the two consolidated DOMA cases, Gill v. Office of Personnel Management and Massachusetts v. HHS.

According to the letter, the DOJ will remain parties to the case but will cease to defend Section 3 of DOMA. They also notified the court that Congress will be given the opportunity to defend DOMA Section 3.

DOMA: recap, summary, and analysis

Timothy Kincaid

February 24th, 2011

It has been a day since Attorney General Holder announced the Obama Administration’s position on the constitutionality of Section 3 of the 1996 Defense of Marriage Act, and we are beginning to get a sense of how this will impact individuals in various states. Some of this is consistent with early assumptions and thinking, some is different from my earlier thoughts, and some is as yet unclear.

DOMA

Before we discuss the impact, let’s revisit the law. DOMA had three sections and, to better understand the issue, here is the law as it is on the books:

Section 1 named the act: “This Act may be cited as the `Defense of Marriage Act’.”

Section 2 revised chapter 115 of the United States Code, which deals in part with the full faith and credit aspects of states’ interaction, and gave permission to the states to ignore any marriage laws of other states that relate to same-sex couples:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3 revised Title 1, Chapter 1 of the United States Code to define “marriage” and “spouse.” Prior to DOMA, these terms were defined by the states and not by the federal government. It is significant and telling that DOMA’s third section was placed in such a prominent position in the US Code; it says that for all of our social contract, our form of government, our protections and requirements and obligations and rights, before we consider anything else, we shall exclude same-sex couples from consideration:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The challenges and the Administration’s postion:

The challenges to DOMA to date are as follows:

Commonwealth of Massachusetts v. United States Department of Health and Human Services (1:09-cv-11156-JLT) – Massachusetts has defined its marriage laws according to its community standards as, since the inception of the nation, states have been allowed to do. However, upon Massachusetts’ recognition of marriage between same-sex couples the federal government ignored the state’s issuance, recording and recognition, instead choosing to implement Congress’ definition of marriage. Massachusetts Attorney General Martha Coakley sued the Department of Health and Human Services to defend the state’s rights and the case was heard by Federal First Circuit Court Judge Joseph Tauro.

Gill v. the Office of Personnel Management (1:09-cv-10309-JLT) – Nancy Gill and Marcelle Letourneau, along with other same-sex couples married under the laws of the commonwealth of Massachusetts, argued that Section 3 of DOMA violated the equal protections provisions of the US Constitution. They were represented by Gay & Lesbian Advocates & Defenders (GLAD) and the case was consolidated with others (see above) and argued before Judge Joseph Tauro in conjuction with Commonwealth.

On July 8, 2010, Tauro found that Congress had exceeded its authority by seeking to assume powers that were reserved to the states (Commonwealth). Separately, he found that there was not even a rational basis for unequal treatments between legally married heterosexual couples and legally married homosexual couples (Gill).

My observations at that time were

These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

The Justice Department appealed Tauro’s decision on October 12, 2010 and filed a brief on January 14, 2011 defending DOMA.

Dragovich v US Dept. of Treasury (4:10-cv-01564-CW) – The Legal Aid Society sued on behalf of California public employees who were not allowed to include their spouses in CalPERS’ long-term care plan due to federal restrictions on the state program’s recognition of marriages and spouses.

On January 18, 2011, Ninth Circuit Federal Judge Claudia Wilkin refused the government’s motion to dismiss in a response that strongly indicated that Wilkin would find that Section 3 of DOMA violated both the due process and equal protection provisions of the US Constitution.

Pedersen et al. v. Office of Personnel Management (3:10-cv-01750-VLB) – Following on their success in Gill, GLAD filed in the Second Circuit Court on behalf of Joanne Pedersen & Ann Meitzen, a legally married couple under Connecticut law along with couples married in Vermont and New Hampshire.

Pedersen
was filed on November 9, 2010, and the first round of filings are due on March 31. At that time the Department of Justice can file for dismissal and GLAD can file for summary judgment.

Windsor v. United States (1:10-cv-08435-BSJ)- This case, filed by the ACLU, has a unique fact pattern. Edie Windsor and Thea Spyer married in Canada in 2007 and their marriage was recognized by their home state of New York (which does not currently grant marriage licenses to same-sex couples). When Spyer died, her estate was taxed with no consideration to their marriage status.

Windsor was filed on November 9, 2010, concurrent with Pederson, and the date for the defense to file a motion to dismiss is March 31, 2011. (Holder’s letter places this date at March 11, but the docket states March 31. In either case, it is quite soon)

To recap, Commonweath deals with the rights of states to define marriage. Gill, Dragovich, Pedersen, and Windsor all deal with the rights of individuals to due process and equal access. None of these cases challenge Section 2 of DOMA or question whether one state must recognize same-sex marriages conducted in another.

What the Administration announced:

In his letter to Speaker of the House Boehner, the attorney general laid out a legal determination and a consequential plan of action. The legal determination was two-fold.

First, Holder recognized that in those court districts in which the appropriate level of scrutiny for anti-gay discrimination had no precedent, the defendants would be required to argue for such a level. And the Department of Justice found itself unable to make a cogent argument that only rational basis be applied.

The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.

Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’

In consequence, the DOJ announced that it would not present arguments to the judges in Pedersen and Windsor that these cases should be tried under rational basis. Should the judges independently determine that no stricter scrutiny than rational basis would be considered, the DOJ was capable of defending DOMA on rational basis pie in the sky notions.

But unless the judges independently determined that rational basis was the standard, the Department of Justice would not attempt to justify DOMA under stricter scrutiny because they had no arguments to present.

What does this mean?

Immediately, nothing. The law remains on the books, the Administration will continue to administer the law, and gay couples have no more federal recognition than two random roommates living in a dorm.

However, it is a very short time before this could all change. The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

Should the House intervene, a not-unlikely possibility, then the House will be allowed to present arguments that only rational basis be applied and that DOMA’s discrimination achieves a governmental function. However, they will do so with the additional burden or explaining why not only the plaintiffs but the Department of Justice are incorrect in their interpretation of the Constitution.

Meanwhile the Massachusetts and California cases continue. It is difficult to know exactly how the Administration’s decision will play into these cases. Having announced that you believe DOMA Section 3 to violate the US Constitution, courts are less likely to believe the sincerity of arguments otherwise.

While GLAD has no certainty about how Gill is impacted, Massachusetts Attorney General Martha Coakley (at least publicly) believes that the DOJ will drop their appeal of Commonwealth (Globe).

“We assume they will withdraw their briefs. Unless we hear otherwise, we believe the Department of Justice’s intention is not to defend any of these cases,” said Coakley, whose suit contended that the federal law unfairly created two classes of married people.

Should the government withdraw its appeal in Gill and Commonwealth, then Judge Tauro will order the United States to recognize Massachusetts’ same-sex marriages. It is unclear whether the House would have any standing to appeal this DOMA decision.

But unless the federal government opts not to appeal to the Supreme Court and the House opts not to intervene, this issue will eventually end up before the Supreme Court (as it could through Dragovich or Perry). And there are a few ways the court could go.

Should they decide to hear Commonweath first, that could make all of the other cases moot. They could determine that states have, as they always have had, the right to define marriage. Doing so could avoid or delay any requirement to determine whether in such definition a state can distinguish between same-sex and opposite-sex marriages as Commonwealth does not address that issue.

Should they decide that the federal government has a newly found right to establish family law, then they would have to deal with the various other cases which deal with discrimination against individuals. This could be an interesting direction.

Although these cases are federal cases and speak only to what the federal government can do, should the SCOTUS find that federal anti-gay marriage law violates the constitutional rights of individuals, it is difficult to see how that would not also be true of the states. While we have assumed that Ted Olson and David Boies would be the ones to argue the unconstitutionality of banning same-sex marriage, it is possible that due to timing (delays or expedition) it could be GLAD or the ACLU.

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?

Justice Dept. Drops Defense of DOMA Lawsuits

Jim Burroway

February 23rd, 2011

The Justice Department today announced that they will no longer defend the so-called “Defense of Marriage Act” in two lawsuits that had recently been filed in Federal District Court challenging the law. 

In a letter sent to House speaker John Boehner, Attorney General Eric Holder wrote that Section 3 of the statute which bars the federal government from recognizing legal marriages of same-sex couples is a violation of the equal protection clause of the Fifth Amendment. Holder wrote that in response the the lawsuit which had been filed recently (Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.)). These lawsuits challenge whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny, which represents a new type of challenge:

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.  

The administration and justice department determined that heightened scrutiny is appropriate for sexual orientation, citing three factors. The first is an acknowledgement that LGBT people have faced a history of discrimination, a position that is shared not just by LGBT advocates, but also by anti-gay activists who have defended the very nature of discrimination against LGBT people in the past. The second factor is a growing consensus that sexual orientation is immutable by outside factors for most people. But the third factor I found more interesting: it is based on historical and legal precedent:

…the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”   Cleburne, 473 U.S. at 445.   And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”   Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).  

Heightened scrutiny trumps “rational basis” in a very key way:

…under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.   Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.   The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.   See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).  

The Justice Department will remain a party to the case, but will inform the court that heightened scrutiny is the appropriate standard for those cases. But it appears that Congress, if it so chooses, can intervene. “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.” But as to the DOJ’s participation in this and other cases before the Federal Court:

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

Other pending DOMA cases include Gill v OPM and Commonwealth v HHS.

Click here to read the full letter from Attorney General Holder to House Speaker John Boehner

The DOJ’s buddies – Part I

Timothy Kincaid

January 27th, 2011

There is an old saying that you are known by the company you keep. So the Obama Administration’s Department of Justice must be mortified by who has filed amicus briefs in support of their defense of the federal Defense of Marriage Act.

In July, 2010, First Circuit Federal Court Judge Joseph Tauro ruled that the federal Defense of Marriage Act violated the constitutional rights of states to define marriage and of the rights of same-sex couples to have their legal marriages recognized. This ruling did not touch on rights outside of Massachusetts.

The Department of Justice appealed that decision and are arguing for the constitutionality of Congress to deny rights based on sexual orientation. They are joined by a Who’s Who of anti-gay activists such as National Organization for Marriage, NARTH and the Eagle Forum.

Considering that the administration officially wishes to repeal DOMA – or at least that portion found unconstitutional – the decision to defend DOMA is one of legal principle (though I’m not convinced of its necessity) that then of ideology. So, sensing that no one from the DOJ is likely to stand on the table and scream, “they’re filthy sinners full of perversion and disease who are defying God and should be punished,” they have plenty of friends to make that point for them.

GLAD, who is arguing the Gill case on the side of equality, had collected these amicus briefs on their website for your perusal and delight. But, on the off chance that you may not find defense of discrimination and heterosexual superiority to be delightful – or that you may not wish to lose your lunch – I’ll give you a synopsis and save you the effort.

The National Organization for Marriage was the first out of the gate. In an argument that surely would have impressed George Orwell, they declare that allowing the states to define marriage – as they have always done – would be a violation of the Tenth Amendment.

Whatever the origin of the misunderstanding of the scope of the Tenth Amendment, the court below turned the Tenth Amendment on its head. Rather than protecting against federal usurpation of powers reserved to the states, the ruling below would allow each state to impose its own definition of marriage on the federal government in a sort of reverse Supremacy Clause.

Well, I’ll say that at least it is a novel argument.

They ramble a bit about censuses and other matters under federal definition, but basically they call for a newspeak approach to federalism whereby it is best achieved by centralized federal control. Listing all of the ways in which the federal government violates the rights of same-sex couples, they present this as evidence of the government’s right to do so. They rant about bigamy and Think of the Children. This was not their best effort.

The certified hate group, Family Research Council, was up next. Nothing new or interesting here, just the same ol’ “no strict scrutiny required” and “them homos in’t got no rights”. But I’ll give Tony and crew props for perhaps the single most meaningless sentence ever entered into public record:

And no court has ever held that marriage, traditionally understood, extends to same-sex couples. [emphasis in original]

George I. Goverman, “a citizen and resident of Massachusetts and a member of the bar of the Commonwealth since 1970″, chimed in to bring up Baker v. Nelson. Perhaps he intended to file his amicus with Perry, but got confused.

He also has a unique presentation style; his argument is in Times New Roman but for case references he appears to have selected an Arial italics font. They are also different font size and don’t quite line up, leaving a rather jarring effect.

But having read countless “procreative activity” amici during Perry, this peculiar presentation was not quite enough to keep me interested. I was, however, amused that he appealed to George Orwell at his conclusion. I guess he didn’t read NOM’s paper.

Judge Roy Moore (of Ten Commandments fame) was here with his Foundation for Moral Law to “defend the unalienable right to acknowledge God as the moral foundation of our laws.”

After he informed the court that “the views of the American people as a whole from the beginning of American history through the present, have held that homosexual conduct has always been and continues to be immoral and should not be protected or sanctioned by law,” I assume that the judge will just toss this one on the pile marked “raging loons.” It seems that Moore hasn’t read a poll or opened a newspaper in the past decade or so.

But I hope the court does read Moore’s rantings. For this paragraph, if for no other:

From Biblical law and other ancient law, through English and American common law and organic law, to recent times, homosexual conduct has been abhorred and opposed; the idea of a “marriage” based on such conduct never even entered the legal mind until very recent times. Congress’s passage of the federal definition of marriage in DOMA had the force of that history behind it and several present-day interests that were asserted when DOMA was enacted in 1996, such as an interest in defending marriage and an interest in defending traditional notions of morality.

The Supreme Court has found that defending “traditional notions of morality” is not an adequate reason for enacting law. In fact, to do so would be to invite judicial rejection.

So it is definitely to our advantage to remind the court that the sole purpose of anti-gay laws – including anti-marriage laws – is based in a desire on the part of one segment of society to impose their religious beliefs upon others. It also helps that Moore quotes the Bible about abominations and such and makes a bestiality comparison. I’m surprised he didn’t channel Jonathan Edwards.

Thank you, thank you, thank you, Judge Moore for writing in and making it perfectly clear that opposition to same-sex marriage is based in religious doctrine, antipathy to gay people, and – at least in your case – baldfaced bigotry.

Why the Obama Administration Must Appeal DOMA Rulings

Jim Burroway

July 10th, 2010

I know. That headline is heresy. But there’s the thing: the two rulings declaring the “Defense of Marriage Act” unconstitutional only apply to Massachusetts. It’s a great win for LGBT couples living in the Bay State, but it’s meaningless everywhere else.

As it stands, there are only three ways to get rid of DOMA nationwide. Barring appeals by Obama’s Department of Justice, the first option is to get another forty-nine sets of similar rulings by federal judges in forty-nine more states. While it’s true that these Massachusetts rulings would serve as a precedent for subsequent rulings by other federal judges, those judges aren’t bound by them in the same way they would be a Supreme Court ruling. So the practical message the Obama administration would be sending if they chose not to appeal this case would be, “Congratulations, now go win 49 more. (And keep going if you want D.C., Puerto Rico and the other territories.)” I just don’t see that happening.

The second option is to overturn DOMA in Congress. I think that would be the preferable solution, but we know how controversial that would be. As archaic as everyone thought anti-sodomy laws were, they were still in force in 14 states just seven years ago before Lawrence v. Texas finally struck them down. Hate crimes legislation and repealing “Don’t Ask, Don’t Tell” are also non-controversial according to public opinion polls, but we still see how difficult that has proven to be in the most LGBT-friendly Congress in history. We hardly need to remind ourselves that same-sex marriage is in a whole different league of contentiousness, as every single public referendum on the issue has painfully shown us time and time again. With the next Congress likely to be much more hostile to LGBT issues as this Congress, I’ve got lottery tickets with better odds than Congress repealing DOMA.

So that leaves the U.S. Supreme Court as the best option. Not a great option, but the best one. The path is still tricky, and it’s unclear how a majority might be put together to support these decisions. But these decisions are the marker against which future appeals will be decided, and that will happen only if those appeals are heard. The next step is the 1st Court of Appeals, then the Supreme Court, with the hope that the Supreme Court agrees to hear the cases should the Appeals Court overturn the lower court’s decisions. This could be Bowers vs. Harwick all over again, or it could be another Lawrence. But wherever it goes, the train has left the station. We’re either on board or not.

Update (Jul 11): Gay and Lesbian Advocates and Defenders (GLAD), the folks behind Gill v OPM has released a thorough set of FAQs (PDF: 264KB/8 pages) answering many of the questions asked by BTB readers in comments.

Defense of Marriage Act Declared Unconstitutional

Jim Burroway

July 8th, 2010

We have just received word that a Federal Court Judge has ruled the Defense of Marriage Act unconstitutional.

According to a press release issued by Gay & Lesbian Advocates & Defenders (GLAD):

This afternoon, a federal court judge issued a decision in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders’ lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA).

The judge also issued a decision in Commonwealth v. United States Department of Health and Human Services, Attorney General Martha Coakley’s lawsuit challenging Section 3 of DOMA, which is separate from GLAD’s lawsuit and based on a different legal theory.

 One Tweet has it that GLAD’s case was decided on “equal protection principles.” Of course, we eagerly await the text of the ruling itself, which I presume will not be in the form of thousands of tweets.

This is an important first step in the long slog to the Supreme Court. Given that the U.S. Justice Department is likely to appeal the ruling, it’s unclear what immediate affect this ruling might have.

Update 1: Bay Windows has more information:

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

Both cases were argued separately last May, although both decisions were handed down simultaneously today. Bay Windows notes that this is an extremely quick turn for a decision like this.

Update 2: Reporter Rex Wocknoer sent out this key snippet from the Commonwealth vs US HHS decision:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Update2  3 and 4: The Gill decision has been uploaded here. The Commonwealth decision is here. I’m pretty busy right now, so feel free to discuss them in the comments.