On DOMA and Review

As you might have heard, the US Department of Justice (DOJ) recently announced that it will no longer defend the Defense of Marriage Act (DOMA), the law that denies same-sex couples all of the federal benefits, rights, and privileges of marriage, even if they're legally married in, say, Iowa.

This announcement comes in the context of two Second Circuit lawsuits challenging the law. According to Attorney General Eric Holder:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit....

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a 'reasonable' one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional."

Broadly, what this means is that DOMA is still in effect, and will be in effect until Congress repeals it or the US Supreme Court finds it unconstitutional. But... well, to understand the implications of this announcement, perhaps I can offer a brief summary of the constitutional issues at play here (which Holder also alludes to in his letter to Congress explaining the DOJ's decision in greater detail). Oh, and if you just want the short and quick version, just do the Roger Rabbit on down to the last few paragraphs of this post.

Generally, the DOJ believes DOMA violates the equal protection component of the Fifth Amendment. When determining whether a law is unconstitutional under the Fifth Amendment, a court will examine how the law discriminates and who it discriminates against. All laws discriminate in some manner, of course, and so the pressing question in determining whether that discrimination is constitutional is how and whether that discrimination is relevant to the purpose of the law.

In a famous footnote in a famous Supreme Court case, Justice Harlan Stone birthed the concept of different levels of scrutiny for different laws, depending on who those laws discriminated against, saying:

"[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."

Now, for instance, if a law discriminates against racial minorities, that law is suspect and is subject to the most stringent level of scrutiny. The reasoning for the heightened level of scrutiny is that laws making racial distinctions were historically grounded in racism and were enacted by white majorities against black minorities on the basis of an irrelevant characteristic that could not be changed. If a law disriminates on the basis of sex, the law is subject to an intermediate level of scrutiny, since sex is (controversially) considered less of a suspect class than race. If a law discriminates on some other basis, it is held to the lowest level of scrutiny, and is thus more likely to be found constitutional.

What level of scrutiny to apply to laws discriminating on the basis of sexual orientation is a largely unsettled question under US constitutional doctrine.

A key action item of the Homosexual Agenda has been to get courts to recognize that gay people belong to a "discrete and insular" minority group and that, therefore, laws discriminating on the basis of sexual orientation warrant a high level of scrutiny. Under constitutional doctrine, minorities demonstrate that they belong to such a "suspect group," by demonstrating that the group has faced historical discrimination, that they possess an immutable trait*, and that they are powerless to assert their rights via the political process**.

*Hence, another key action item of the Homosexual Agenda involves convincing the world that sexual orientation is not fluid; while a key action item of the Anti-Gay Agenda involves convincing the world that gay people can and should just go through ex-gay programs to become Not Gay Anymore.

**Hence, Maggie Gallagher and company's frequent attempts to convince the world that Homos Are Imbued With The Incredible Power of the Gay. Dun dun DUN!

In this way, does constitutional law frame many of these common "culture wars" narratives. A good discussion could be had as to whether any of these narratives reflect truth, or whether they are argued because they have to be argued for each side to "win."

So, what this has to do with the DOJ's DOMA announcement is that (a) because the Second Circuit has not yet articulated a standard of scrutiny for sexual orientation, (b) the DOJ has room to articulate its position that laws discriminating on the basis sexual orientation warrant heightened scrutiny. And, in his letter to Congress, Attorney General Holder did just that. He first noted that:

"...[T]here is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have 'demean[ed] the existence' of gays and lesbians 'by making their private sexual conduct a crime.'"

Holder then noted that the "scientific consensus" is that sexual orientation is an immutable characteristic, and that the longstanding ban on gays in the military and the lack of federal employment discrimination protections show that "gays and lesbians" have limited political power.

After establishing that laws discriminating on the basis of sexual orientation are subject to heightened scrutiny, Holder notes that the government must show that DOMA is "substantially related to an important government objective" and that the justifications for the law cannot be invented "post hoc in response to litigation." So, looking at DOMA, Holder notes that the legislative 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."

For instance, a sample DOMA justification from the Congressional record: "Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality." (So much for Maggie Gallagher and company's claim that basically all "marriage defenders" have benign motives for opposing marriage equality, eh? Yet another narrative influenced by constitutional law doctrine).

Thus, DOMA is unconstitutional because it appears to be less about "defending marriage" and more about expressing moral disapproval of homosexuality.

In general, I think it's hard to predict what the effect of this announcement will be. For one, the DOJ's statement about heightened scrutiny is not binding on courts, and so theoretically the Second Circuit could be like, "That's nice. But we're going to apply the lowest level of scrutiny anyway." In which case, Holder indicated that the DOJ would defend it just as it had defended DOMA in other jurisdictions that did use the lowest level of scrutiny.

Two, Holder says that the DOJ won't defend DOMA if a heightened level of scrutiny applies, but he also suggested that members of Congress could defend the law if they chose. Yet, whether members of Congress would have standing to do so could raise a whole 'nother derailing can of worms akin to what we're now seeing in California with the Prop 8 trial.

And finally, what I find to be disappointing is that the Executive Branch will continue to enforce DOMA, even as it refuses to defend it, meaning that right now, today, legally married same-sex couples will not receive federal marriage benefits. And, in this concession we see a tension between the separation of powers and Obama's oath to "preserve, protect and defend the Constitution of the United States."

Although he likely agreed to continue enforcing DOMA in anticipation of the anti-gay knee-jerk wailing about an executive branch usurpation of judicial/legislative powers, it's unclear how enforcing a law he finds to be unconstitutional comports with his duty to defend the Constitution.