Thursday, 24 February 2011

Obama Administration Decides DOMA is Unconstitutional

Attorney General Holder yesterday announced that the Obama administration would no longer defend the so-called Defence of Marriage act in Federal Court.

This is great news. But it's a little complicated - so I've been reading up on the matter trying to figure out exactly what the Justice Department's new policy now means, and what the implications will be. Lawyers who read this blog (I know you're out there!) please feel free to chime in with further info as I'm just figuring this out as I go along.

The big news here is that the Obama administration believes gays and lesbians DO meet the standard of requiring heightened scrutiny under the equal protection clause of the constitution. Previous court cases have been raised in jurisdications where the courts had previously ruled that this standard should not be applied to sexual minorities - but no such precedent exists in the 2nd Circuit Court, where two new cases are to be tried. Nor has the Supreme Court ever ruled on this specific question.

The Obama administration therefore had no precendent to be bound or guided by in this instance, and the Justice Department therefore had to fashion its legal reasoning from scratch.

Under those circumstances, the position that they take is that section 3 of the Defence of Marriage act - the portion that specifically prevents the Federal government from recognising same sex marriage that are legal within a particular state - is unconstitutional. They will not defend it. But that doesn't mean that it is no longer law.

Until either 1) Congress repeals the law or 2) a Federal court rules the law unconstitutional, the provision will stay on the books.

So there's no immediate effect to this decision. But the government's position does make it far more likely that the law will be struck down by the courts, because it is difficult for anyone other than the federal government to claim that they have legal standing to defend the law.

This is a narrow, legalistic decision on the part of the Obama Justice Department, but the thinking that underlies it is boldly clear:
“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.

“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”
If a court eventually does decide that Section 3 is unconstitutional, as the Obama administration believes, that would greatly complicate the work of the US Government because suddenly we would have a patchwork system in place for federal benefits. Gay couples would have immigration rights in Massachusetts, but not in Ohio. They could have social security survivor benefits in Iowa, but not in Kansas.

But I say - bring on the mess. Because the more people are forced to confront the reality of gay men and woman and their "unreasonable demands" to be treated just like everybody else, the more hollow and pointless the arguments of the opponents seem.


Ronald said...

I have a serious question about this action, not withstanding the content of the law. It seems that the Executive Branch is seeping into interpretation of the law, the bailiwick of the Judicial Branch. The Executive Branch, as far as I know, does not have the Constitutional competency to decide which laws are worth enforcing and which ones not. It seems to me, that the law itself would have to be challenged, an action that the Executive could pursue through submitting a bill before Congress. The alternative would be to issue a suit before the Courts directly to challenge the constitutionality of this provision.
Either of these alternatives would have been, IMHO, better than a direct interpretation from the AG.

Scott said...

@Ronald, the interpretation of the law is expressly an executive responsibility under the Constitution. Laws are not self-executing; if they were, we would not need an executive branch at all. Federalist arguments at the time of ratification make it clear that the Founders generally assumed that the president would exercise discretion in seeing that legislation not violate the Constitution. (It was assumed, for example, that unconstitutionality was the only valid grounds for a veto.) Whereas the judicial branch's power to interpret or nullify laws in light of their constitutional standing is nowhere mentioned in the Constitution.

The Obama administration's action here is just about perfect: In the federal circuit in question, there is no settled judicial interpretation of the potentially contradicting constitutional and statutory issues, so in defending the case the executive must exercise discretion as to how to interpret and apply the relevant constitutional and statutory standards. Asserting that DOMA did not violate constitutional and statutory equal-protection standards would itself be an interpretation and a nullification of other federal statutes. A conflict exists, no court with direct authority on the case has offered an interpretation settling the conflict, and so the executive branch must do so. The judicial branch will still have final say when the case is heard.

Had the administration taken this approach in another circuit, or had it issued some kind of order halting federal enforcement of the law by executive fiat, that would have been an inappropriate usurpation akin to the worst of Bush's signing statements. But it did not. A specific case called for executive discretion, which the executive exercised, and presumably if the court rules otherwise, the executive branch will obey the court. That's the system working exactly as it should.

@Karin, I'm not so sure that the central claim of your piece, "[I]t is difficult for anyone other than the federal government to claim that they have legal standing to defend the law," is entirely accurate. Just this week, the Supreme Court heard a case in which the court appointed attorneys to argue a side of the case that the relevant government authority was unwilling to defend. Furthermore, the primary beneficiary of most DOMA provisions is state governments, so litigation is most likely to take the form of individuals suing the state of their residency for benefits based on the validity of marriage performed in another state, and the residency state asserting the authority under DOMA not to do so. In such a case, DOMA would be defended by the state; a federal decision to sit it out wouldn't matter. The Obama admin's decision may speed the day when the federal government is forced to recognize the validity of any state's gay marriages, which would be good, but that's not the main harmful effect of DOMA.

Obama London said...

Scott - Hmm... I think you're explanation to Ronald is dead on.

But as to the question of standing, I think you're referring to portions of DOMA on which the White House has not yet commented legally. The clause in question here is section 3, which specifies whether the federal government must give benefits to legally married same sex couples. The potential lawsuits from couples suing for recognition based on their marriage in another state is not the subject of Holder's announcement as reported to Congress. And I think you're right that the States would have standing in that case.

But there is actually one other party that would also have standing to sue on the federal issues - and that is Congress themselves. Boehner needs to decide whether he wants to do so, which will put him on the wrong side of public opinion, which increasingly supports protection for already-married couples, or not do so, which would inflame his base. This could get interesting.

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