Facing an imminent deadline on March 11 to file either an answer or a motion to dismiss in two lawsuits challenging the constitutionality of Section 3 of the Defense of Marriage Act pending in federal district courts in New York and Connecticut, which necessarily meant taking a position on the level of judicial scrutiny to be applied to a law that discriminates based on sexual orientation within a circuit (the 2nd Circuit) that has no established precedent on the issue, the Justice Department and President Obama have agreed that a "heightened scrutiny" standard should apply and that under this standard Section 3 is unconstitutional.
As a result, according to an announcement today by Attorney General Eric Holder, the Justice Department will not be filing a motion to dismiss the two pending cases, Windsor v. U.S. (pending in New York) and Pedersen v. Office of Personnel Management (pending in Connecticut),and will presumably file answers to the two complaints conceding that under the appropriate standard of judicial review, Section 3 is unconstitutional. It was less immediately clear how the Justice Department might proceed in another DOMA challenge now pending at the trial stage in California, Dragovich, where the Department recently loss a dismissal motion, or — most significantly — in an appeal the Department has filed in the 1st Circuit Court of Appeals from a ruling last summer by U.S. District Judge Joseph Tauro, Gill, finding that Section 3 does not even meet the less demanding rational basis test followed under 1st Circuit precedents.
Congress passed the Defense of Marriage Act and President Clinton signed it into law in 1996, shortly before voters were to go to the polls to elect a new Congress and to re-elect Clinton. Section 2 of the Act, which is not involved in the pending lawsuits, provides that states are not required to give full faith and credit to same-sex marriages contracted in other states, purportedly exercising Congress's authority under the Full Faith and Credit Clause of the Constitution to determine how it should be applied. Section 3 provides that the federal government would not recognize same-sex marriages for any purpose of federal law. As of today, no federal appellate court has questioned the constitutionality of either provision.
When DOMA was passed, and still to this day, the Supreme Court had not declared what the appropriate standard would be for federal courts to evaluate the constitutionality of laws that discriminate on the basis of sexual orientation. Under that court's precedents, laws that discriminate on the basis of a "suspect classification," such as race, are subjected to "strict scrutiny," a test under which the law is presumed unconstitutional and a heavy burden of justifying it as necessary to achieve a compelling public interest falls upon the government.
Laws that do not use a "suspect classification" are normally presumed to be constitutional unless the court cannot imagine any rational non-discriminatory justification for them, the so-called "rational basis test." However, the Supreme Court has recognized that certain characteristics, such as sex, occupy an intermediate position between these extremes, and has evaluated sex-based classifications using "heightened scrutiny," under which the burden of justifying the law as significantly advancing an important non-discriminatory governmental interest falls on the government.
In Romer v. Evans, a 1996 ruling issued shortly before DOMA was passed, the Supreme Court held unconstitutional Colorado Amendment 2, a state constitutional amendment adopted by popular initiative that prohibited the state or any of its political subdivisions from protecting gay people from discrimination. The Supreme Court found this to be a facial violation of the 14th Amendment's Equal Protection Clause, not justifiable by any hypothetical or real non-discriminatory state interest, and did not discuss what level of scrutiny should be applied in general to laws that discriminate based on sexual orientation. When the Supreme Court struck down the Texas Homosexual Conduct Law in 2003 in Lawrence v. Texas, it based the ruling on the Due Process Clause rather than the Equal Protection Clause, thus expressing no view on the appropriate method for analyzing sexual orientation discrimination claims.
Thus, the Supreme Court has not set a standard for reviewing such claims, leaving it up to each of the federal appellate circuits to devise its own approach until the Supreme Court finally decides the issue. So far, every circuit court to address the issue has applied the "rational basis test," but many of those rulings pre-date Romer and Lawrence and don't take account of those important precedents. Many of those circuit court decisions were strongly influenced by the Supreme Court's 1986 decision Bowers v. Hardwick, which rejected a constitutional challenge to the Georgia sodomy law. Courts reasoned that if gay sex could be made a crime, then gay people were not entitled to constitutional protection from governmental discrimination. The Supreme Court overruled Bowers in Lawrence, stating that it was incorrect when it was decided.
In cases subsequent to Lawrence, however, many circuit courts, including the 1st and 9th, have continued to adhere to the view that sexual orientation discrimination claims are to be analyzed under the rational basis standard. In defending Section 3 of DOMA in pending cases in those circuits, the Justice Department has relied on those precedents and argued to trial judges that rational arguments could be made to support the statute. However, the 2nd Circuit, whose jurisdiction covers New York and Connecticut, has no precedent on this issue, forcing the Justice Department for the first time since the Lawrence decision to have to make an argument in federal court about the appropriate level of review when it responds to these new lawsuits.
In preparing to either move to dismiss the New York and Connecticut lawsuits or to answer those complaints, the Justice Department undertook a review of the case law on equal protection and concluded that it could not plausibly argue that a law that intentionally discriminates based on sexual orientation should be evaluated under the "rational basis test." In a letter that Attorney General Holder sent today to Rep. John Boehner, the Speaker of the House of Representatives, explaining the Administration's new position, Holder laid out the full analysis undertaken by DOJ, and its subsequent recommendation to President Obama, that sexual orientation classifications should be analyzed under the "heightened scrutiny" test, and that when subjected to that test, such classifications would be found unconstitutional.
As Holder explained, under a "rational basis" approach, the Department could argue that there were hypothetical justifications that might be advanced for the federal government to refrain from recognizing same-sex marriages. The one upon which the Administration relied most heavily in defending Section 3 in the Gill case, decided in Boston last year, was a federal interest in uniformity, i.e., that eligibility for marriage-based federal benefits should not vary from state to state, as arguably would be the case if qualifications for marriage differed fundamentally from state to state. Another argument was a desire by Congress to be "neutral" on the question of same-sex marriage as the issue was sorted out on a state-by-state basis.
But that was not really the basis upon which Congress passed DOMA and, as Holder states in his letter, when a statute is subjected to "heightened scrutiny," it can't be defended based solely on such hypothetical rationalizations, but rather must be defended on the basis of the reasons articulated by Congress when it passed the law. A review of the legislative history shows that Congress did not articulate any reasons that would be defensible under present-day constitutional analysis, as they were all based on the view that gays are morally inferior beings whose defining sexual acts are subject to criminal punishment, as one would conclude from reading statements made by members of Congress supporting the bill during the legislative debate.
After Lawrence v. Texas, such arguments will no longer sustain a discriminatory statute. Indeed, last summer Judge Tauro in Boston concluded that DOJ's proffered arguments were insufficient to uphold the statute under rational basis review, and District Judge Claudia Wilkens reached the same conclusion last month in her ruling denying the government's pending motion to dismiss in a California DOMA challenge.
Usually the Justice Department will defend statutes that are challenged in lawsuits against the government, and the Obama Administration has invoked the customary practice to justify its defense of DOMA (as well as the "Don't Ask, Don't Tell" statute) in pending lawsuits. However, says Holder, when the President and DOJ become convinced that a statute is unconstitutional and that there are no longer any legally reasonable arguments that can be made in its defense, it is time to throw in the towel, as it were, and to concede the point. This puts the Department in an odd position, especially when a bill to repeal the statute is pending in Congress but has so far had no real traction. As Holder notes, defending statutes is part of DOJ's obligation to Congress, a co-equal branch of government. And so, Holder says in his letter to Speaker Boehner, the Administration will do everything necessary to facilitate allowing a legal representative of Congress to join the case in defense of DOMA if Congress wants to undertake its defense. While DOJ will continue to represent the government in these pending lawsuits, it will no longer argue that the statute is constitutional.
On the other hand, the President and DOJ do not have authority to unilaterally ignore statutes that are on the books, and so Holder announced that pursuant to the President's direction, the executive branch will continue to abide by Section 3 of DOMA until it is either repealed or finally declared unconstitutional by a court. A final declaration of unconstitutionality by a court would presumably consist of either a decision declaring Section 3 unconstitutional by the Supreme Court or, perhaps, such a ruling by a federal court of appeals as to which Supreme Court review is sought but denied, or perhaps in which the Supreme Court summarily affirms the court of appeals without an opinion.
In his first response to these developments, Speaker Boehner questioned the timing of this major change in Administration position when there are so many other pressing issues looming for resolution, but the timing was dictated by the necessities of the litigation process, surely not by any desire by the President to stir up this contentious issue at this precise moment. Making this decision now gives Congress – and, more particularly, the Republican-controlled House, which is the chamber more likely to seek to defend DOMA — at least a few weeks in which to hire counsel and frame its own motion to dismiss or answer to the two pending complaints.
Holder's official statement and letter to Boehner leave unaddressed an important ramification of the Adminstration's decision about the DOMA case: its impact on the pending appeal in the 9th Circuit of the Log Cabin Republicans' challenge to "Don't Ask, Don't Tell." DADT is a prime example of a law that discriminates on the basis of sexual orientation. The trial judge in that case, District Judge Virginia Phillips, used "heightened scrutiny" to strike down the law based on an earlier ruling by the 9th Circuit in the case brought by Margaret Witt to challenge her discharge from the Air Force Reserve, that court concluding that after Lawrence v. Texas a law that burdens the intimate association rights of gay people must be subjected to heightened scrutiny. Accepting that as the rule of the 9th Circuit, the Justice Department argued that DADT survived heightened scrutiny due to the special needs of the military, but lost the argument before the District Court. The Department's new position on equal protection suggests that the equal protection part of LRC's case should acquire new life as well, although that might not change DOJ's litigation strategy, which at this point continues to rely on the argument that deference to the political branches requires the court to uphold DADT. The main problem with that argument now, of course, is that the political branches have passed a law provisionally repealing DADT, so the argument loses all logical force.
Postscript – For a very fine analysis of the potential impact of this move by the Administration in the battle for protection of public employees from sexual orientation discrimination, check out this blog post: http://www.bilerico.com/2011/02/president_obama_strengthens_enda_by_rejecting_doma.php