April 5, 2012
By Scottie Thomaston
One of the most interesting parts of yesterday’s hearing at the First Circuit Court of Appeals taking up a challenge to the odious Defense of Marriage Act is the marked shift in the Justice Department’s position. At the hearing yesterday, the Justice Department said it will “cease defending section 3 of DOMA on any basis” and that they were “not here [in court] to defend it under any standard.” When pressed by a judge, the lawyer for the Department said they aren’t taking a position on defending DOMA under rational basis review.
Since the Obama administration came into the White House their legal tactics involving the Act have seemed to grow more aggressively hostile toward it. Back in 2009, they were defending DOMA just as the Bush administration had. They argued in their first brief in a DOMA case that it passes rational basis review, the easiest standard of review to which a law can be subjected.
The administration faced criticism from the brief, which suggested that there’s no right to same-sex marriage just as there’s no right of cousins to marry or uncles and their nieces to marry. They dropped that language from their briefing on those cases, as well as eventually disavowing Congress’ own stated rationales for the Defense of Marriage Act.
In February 2011, all that changed when the Justice Department decided that it would not defend Section 3 of the Defense of Marriage Act, as it thinks laws affecting gays and lesbians should be reviewed under a heightened standard of scrutiny. The Justice Department said then that Section 3 of DOMA would likely pass rational basis scrutiny but that it’s not the correct standard anyway. They made this decision when a DOMA case reached a court where there was no circuit precedent on point – meaning that the outcome of the case would help set the standard of review for cases affecting gays and lesbians in the circuit. The Justice Department said it was only withdrawing its defense of Section 3 of DOMA and would only participate in the litigation to that extent; it would defend other laws and it thinks DOMA is constitutional if rational basis is applied.
(more in the extended entry)
In the immigration context, the Justice Department has gone back and forth – blocking some deportations that were only happening due to DOMA while allowing others to proceed. They have had several policy changes in the immigration context and have refused so far to halt pending review of green card applications until after the DOMA cases are resolved.
The Department released its first brief, after its decision to stop defending Section 3 of DOMA, in the Golinski case. Their arguments did not just suggest a lack of defense – they completely repudiated the Defense of Marriage Act and all of Congress’ stated rationales for its passage. Writing that, “[t]he federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals,” they discussed how deep that discrimination goes, saying later that, “[i]n addition to the discrimination reflected in DOMA itself, as explained below, the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.” The brief seemed to suggest a change from a lack of defense to openly attacking the defense of the law.
Just recently, another shift occurred. The Justice Department decided that it would not defend the Act against servicemembers, and that its decision also includes refusal to defend a similar law that hurts military servicemembers who are gay and lesbian by denying them benefits heterosexual servicemembers may receive.
With this context this change in approach is interesting. The administration has completely distanced itself from association with the Act. By departing from its previous view, it’s owned by its defenders and they are the ones stuck with the task of doing things like defending the law against a United States veteran who got multiple sclerosis as a result of her job. And admitting that they won’t be defending it under even the most relaxed standard will certainly help judges decide they can make a ruling that DOMA is unconstitutional even if they are unwilling to suggest the level of scrutiny should be heightened for laws affecting gays and lesbians.