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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.

DOMA3 ruled unconstitutional in Pedersen et al v. Office of Personnel Management

Timothy Kincaid

July 31st, 2012

Oh yes. Another one of those “liberal militant activist judges” has “ruled from the bench” and struck down DOMA3. Again. This particular “liberal militant activist judge” is a George W. Bush appointee and happens to be a black Republican who is active in her church. Again.

The ruling by Judge Vanessa L. Bryant, an appointee of President George W. Bush, stems from the lawsuit Pedersen et al v. Office of Personnel Management et al, filed by Gay & Lesbian Advocates & Defenders (GLAD) in November 2010 in the Federal District Court in Connecticut.

“Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition,” Judge Bryant wrote, “thereby resulting in an inconsistent distribution of federal marriage benefits as all marriages authorized by certain states will receive recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits.”

Poor National Organization for Marriage. What slurs will they have for Ms. Bryant? How can they spin her as out of touch or a radical? It’s enough to make a NOMer want to eat a quart of ice cream. Or two.

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.

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