Dispatches from the Creation Wars

Obama DOJ Stops Defending DOMA. Kind Of.

In a highly unusual move, President Obama has told the DOJ not to defend the constitutionality of the Defense of Marriage Act (DOMA) — but only in one judicial circuit. Attorney General Eric Holder sent out a press release explaining the decision — and attempting to explain why the administration defended DOMA in several other cases, and is going to continue to do so in those cases, while deciding not to defend it in two new cases. Yes, you should prepare yourself for some serious legal hair-splitting.

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

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. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Dizzy yet? You should be. That was some serious tightrope walking. The situation was already strange because the administration was arguing that DOMA is unconstitutional and should be repealed in Congress but defending it as constitutional in the federal courts. Now it becomes even more bizarre because the administration will be arguing that it’s constitutional in one court but unconstitutional in several others.

Yes, there is a distinction between the rational basis test and either strict or intermediate scrutiny (I’ve argued strongly that these standards should not exist, that all cases should be judged according to strict scrutiny, but that is not the current state of the law). But as Holder notes, the 2nd Circuit has not yet determined which standard applies in that circuit. And that won’t be decided until this case is ruled upon.

So what does the DOJ actually argue in court? Sure, they can file briefs arguing for strict or intermediate scrutiny, but what if the court decides that rational basis is the proper test? Does the administration then agree that the law is constitutional on that basis? Do they file two different briefs, one arguing that it’s constitutional if the court applies rational basis but unconstitutional if they apply intermediate scrutiny? It’s all quite convoluted.

They have invited Congress to intervene and defend the suit, which many legislators will surely agree to do. But you can bet that those legislators will be citing the DOJ’s many briefs in other districts arguing that the law is constitutional — even while, in this case, they’re arguing that it’s not. This is the kind of thing that makes non-lawyers think that the whole profession is little more than a game of sophistry.

The National Gay and Lesbian Task Force issued the following statement about this decision:

“The decision by the Obama administration not to defend the discriminatory, so-called ‘Defense of Marriage Act’ is a tremendous step toward recognizing our common humanity and ending an egregious injustice against thousands of loving, committed couples who simply want the protections, rights and responsibilities afforded other married couples. We thank the Obama administration for having the integrity to recognize that this law should not be defended in court. Discrimination has no place in our society, and DOMA has only served to belittle our country’s deeply held values of freedom and fairness. It’s time to end DOMA once and for all.”

But the Obama administration didn’t recognize that this law should not be defended in court. It only recognized that this law should not be defended in courts in the 2nd Circuit. In the other 12 judicial circuits, they have defended, and will continue to defend, DOMA as constitutional.

In my view, this speaks volumes about Obama’s nearly ubiquitous need to be all things to all people in every situation rather than just taking a principled stand and accepting that some people are not going to like it.