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The Justice Department shifted again on DOMA yesterday

Marriage equality

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.


  • 1. Sagesse  |  April 5, 2012 at 11:23 am

    The other thing that changed is that another district court judge (White in Golinski) has ruled against DOMA.

  • 2. Scottie Thomaston  |  April 5, 2012 at 11:26 am

    That too. Rational basis challenges keep failing in lower courts. Seems counter-intuitive to keep suggesting it's valid I suppose.

  • 3. Kathleen  |  April 5, 2012 at 11:29 am

    Great recap of the DOJ's recent history with DOMA in the courts, but I don't think the DOJ said yesterday that it "does not believe the Act is constitutional under any standard of review." What Delery said was that the DOJ would "cease defending section 3 of DOMA on any basis, so I'm not here to defend it under any standard." In fact, one of the Judges pressed the issue and asked him, "Do you have a position on what would happen if we use the rational basis test?" Delery's response was "We don't, your honor. We don't"

    While the distinction between not believing the Act is constitutional under rational review and not being willing to defend it under this standard may seem a fine line, I think it's an important one. As someone pointed out in the comments in an earlier thread, there is considerable interest in keeping rational basis review an easy standard against which to defend laws. The DOJ is walking this fine line by taking "no position" on whether DOMA is defensible under this loose standard and standing firm in its position that heightened scrutiny should apply.

  • 4. Scottie Thomaston  |  April 5, 2012 at 11:37 am

    You're right. I meant to include that second part (that part about not knowing what would happen under rational basis) but forgot to add it. I'll change what I wrote a bit.

  • 5. Lymis  |  April 5, 2012 at 2:36 pm

    I wonder, though, whether this has anything to do with the fact that he was speaking before a panel in a court where there is a precedent that heightened scrutiny is inapplicable. They want an en banc hearing where they can ask for the Cook ruling to be overturned with regards heightened scrutiny.

    Is it possible that they aren't opposing it under rational basis in the hopes that the court finds a reason to apply a heightened level of scrutiny, or to set the stage for a strong opposition to it later under heightened scrutiny?

    They clearly want a court to declare sexual orientation to be subject to either strict scrutiny or whatever it is that they call what they use for sex.

  • 6. Kathleen  |  April 5, 2012 at 3:18 pm

    Delery's statement about the DOJ's decision to no defend DOMA Section 3 "going forward" was pretty emphatic. It's consistent with briefs they've filed in this and other cases. I think it's safe to read this as an across-the-board position, no matter what the jurisdiction.

  • 7. Str8Grandmother  |  April 5, 2012 at 2:29 pm

    Maybe it is just me but this sentence does not make sense to me. Maybe it is the ending part of the sentence.

    "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 of rational basis is applied. "

  • 8. Don in Texas  |  April 5, 2012 at 3:19 pm

    The last line should read "it thinks DOMA is constitutional IF rational basis in applied."

    Of course, that position was thrown out the window in yesterday's arguments.

  • 9. Str8Grandmother  |  April 5, 2012 at 3:50 pm

    I was thinking it should say, "and it thinks DOMA is constitutional IF rational basis is applied. " (this sentence is in the paragraph referring to the Justice Departments position in Feb of 2011. ) I am not sure that that was the DOJ position in Feb 2011 that DOMA was Rational. I didn't research it, but that is my recollection. I thought in Feb of 2011 the DOJ's position was that DOMA does NOT survive even Rational Review.

  • 10. Kathleen  |  April 5, 2012 at 5:10 pm

    Here is the letter sent to the U.S. House in Feb 2011.

    See third to last paragraph that begins "In light of the foregoing.." this sentence:
    "If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. "

    AFAIK, the DOJ has never said DOMA doesn't survive rational basis review. Even now, they're simply taking "no position" on whether it does.

  • 11. Str8Grandmother  |  April 5, 2012 at 5:17 pm

    This is so Obama-esque isn't it.

  • 12. Scottie Thomaston  |  April 5, 2012 at 4:34 pm

    Ack. Typo. Fixed thanks

  • 13. Dana Jeanne  |  April 5, 2012 at 4:16 pm

    What is this higher scrutiny thing?

  • 14. Scottie Thomaston  |  April 5, 2012 at 4:37 pm

    When laws affect a whole class of people (gays, racial minorities, women, etc.) they are reviewed by courts under a standard that asks if the law actually furthers an important government interest. The lowest standard of scrutiny, rational basis, just asks if there is a possible rationality behind the law's existence. So higher scrutiny = less of a chance for a discriminatory law to be upheld by courts.

    Right now laws affecting gays and lesbians are only subjected to rational basis scrutiny.

  • 15. Kathleen  |  April 5, 2012 at 5:23 pm

    It really isn't the fact that an entire class is impacted that triggers heightened scrutiny. For example, "people who buy milk" is a class of people, but laws impacting that class wouldn't have to survive heightened scrutiny.

    In general, all laws must survive rational basis review in order to comport with the Constitution.- that is, the law must be 'rationally related' to a 'legitimate' governmental interest. This is an extremely permissive standard and generally any law duly enacted is given a presumption of Constitutionality and it is up to a party challenging the law to show that it fails to meet this test.

    However, if a law either impacts a fundamental right (i.e., freedom of speech) or a so-called suspect or quasi-suspect class, then the law must be justified under a heightened level of scrutiny. The highest level is called "strict scrutiny" and requires that the law be "narrowly tailored" by the "least restrict means" to further a "compelling" governmental interest. Fundamental rights and 'suspect classifications" (e.g., based on race) trigger this standard.

    "Intermediate scrutiny" is a bit more nebulous and requires that the law be "substantially related to an "important" governmental interest. Gender falls in this category.

    Hopefully, someone else can take over the rest of this explanation; I have to get ready to leave. I'll get back to this discussion later tonight. 🙂

  • 16. PoxyHowzes  |  April 5, 2012 at 6:09 pm

    Well even if you're gone for a bit, Kathleen, thank you again so much for your comments and contributions to this thread and to the wider discussion. I wouldn't understand half of what I do about this case if you hadn't helped me to do so!

  • 17. Bill S.  |  April 6, 2012 at 5:20 am

    To add a bit, there are 4 criteria that typically must be met for a group to acquire strict scrutiny:

    1. The group is a minority with a history of discrimination.

    2. The group possess an immutable trait, or else a trait that is so fundamental to one's identity that it would be unreasonable for the government to expect one to change it (e.g. religion).

    3. The group has some degree of political powerlessness, i.e. it is unable to achieve its goals through the legislative process in the reasonable amount of time it normally takes to enact legislation.

    4. The distinguishing feature of the group does not impair its members' ability to contribute to and integrate into society. (i.e. mental retardation would be precluded from inclusion here)

    A group that meets some, but not all, of these characteristics will receive intermediate scrutiny (e.g. gender: women have a history of discrimination but they are not a minority, nor are they politically powerless: they have the exact same voting power as men.)

    Gay people clearly meet all of these qualifications and deserve STRICT scrutiny.

    A "compelling government interest" is not an interest that indicates a mere policy preference (e.g. "opposite-sex families are better than same-sex families") but rather must serve public safety or national security concerns (i.e. "People will DIE if same-sex couples get married!")

  • 18. Kathleen  |  April 6, 2012 at 4:11 pm

    Just wanted to add a bit here.

    When a law impacts one class of people differently than another class, the allegation is that the law violates constitutional guarantees of equal protection. As part of the analysis for reviewing an equal protection claim, the court will decide whether the class singled out is either quasi-suspect or suspect in order to determine the level of review the law must withstand (rational basis, intermediate, strict). To make that determination, it looks at the criteria Bill listed above with a few caveats.

    — This list isn't carved in stone; it doesn't come from some set of rules somewhere, but instead from a line of cases over the years. As such, there's some debate over whether all, or which, must be met for a class to qualify for strict scrutiny.

    — Often gathered up under 'immutability' is the requirement that the class is clearly identifiable as a class – that is, it's possible to tell who is and who isn't in the class. We saw a lot of bickering over this in the Perry case. The Proponents introduced evidence trying to show that the definition of of who is gay wasn't clearly defined and thus not a distinct class–i.e, is it based on experience? on attraction? on self-identity? Of course, the witnesses explained that those distinctions were only relevant in the context of setting research parameters.

    — Religion qualifies for strict scrutiny NOT because it would be unreasonable for the gov't to expect someone to change it, but because it's a fundamental right. When a law impacts a fundamental right, the lawsuit will allege a violation of due process, not equal protection. The above list of factors is only relevant in the context of an equal protection claim. For example, if a law singled out Catholics, it would not be necessary to show that Catholics are politically powerless; one only needs to show that law infringes on First Amendment guarantees of religious freedom to trigger strict scrutiny. This distinction between due process and equal protection claims causes a lot of confusion, particularly as it relates to religion.

  • 19. Bill S.  |  April 9, 2012 at 6:11 am

    Normally yes, a classification based on religion will usually trigger strict scrutiny under the 1st Amendment, but I believe that religion has also been ruled to be a suspect classification. I can't think of a case off the top of my head where equal protection was used to strike down a law regarding division based on religion, but the decision in Golinski does make a note of this:

    "In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden afundamental right or target a suspect class, such as those based on race, national origin, sex or religion" (12).

  • 20. Kathleen  |  April 9, 2012 at 1:39 pm

    I recall reading that statement of White's, but it's a bit contradictory if you read it as just referencing equal protection. He talks of protecting "the promise of equal protection" and then goes on to speak of "those laws that burden a fundamental right or target a suspect class." If the law burdens a fundamental right, the legal claim would be a violation of due process (sometime called liberty), not equal protection. So, on the one hand he says he's talking about EP, then says heightened scrutiny applies if protecting under due process OR EP.

    I'd really be interested in finding a case where religious classifications were struck down under an equal protection claim. I know Judge White asked about religion in the context of EP and in the motions hearing (per transcripts) there was discussion of this. But I don't recall any party being able to cite a case where there was an EP analysis on any religious classifications. The parties said they'd found dicta in cases referencing religious classifications as suspect, but no case that looked at the factors generally associated with EP to conclude strict scrutiny should apply. AFAIK, religious classifications have always been subjected to strict scrutiny under a due process analysis. Again, would be very interested in finding such a case.

  • 21. Bill S.  |  April 10, 2012 at 5:40 am

    I'm curious Kathleen how you think this case could affect other states in the 9th Circuit, if at all. The general consensus in the legal community pretty much seems to be "The Supreme Court will deny cert to this case on the narrower grounds and this case only affects the circumstances specific to California."

    Ever since this ruling was released I have serious doubts that this ruling should be limited only to California (I also don't think it's wise to brush off the possibility that the Supreme Court could very well accept this case). While California is the only state to have previously granted same-sex marriages then take away that right, this was not the aspect that the 9th Circuit actually found unconstitutional. Rather, this was merely the vehicle by which California's current system of separate-but-equal family law was instituted.

    The 9th Circuit struck down this *system,* not the vehicle by which it was instituted. Indeed, I think the majority opinion (or perhaps it was the dissent, the PDF file is not searchable!) did cite a Supreme Court case where they did find it permissible for states to rescind state-level constitutional rights.

    The 9th Circuit found that, even assuming that giving all of the same state-level rights of married couples to same-sex couples except the name "marriage" had a rational basis, the proponents could not show how any of these rational bases were advanced by this law, and that the differentiation was purely a symbolic measure to mark gay couples as inferior.

    This would beg the same question of Hawaii, Nevada, Oregon, and Washington: Do these states have a rational basis for giving all state-level marriage rights to same-sex couples without the name, and can they show how these laws advance that basis? Under Perry v. Brown, the answer should still be "no," regardless of how these separate-but-equal institutions were established.

    I think that gay actvists in these states may be ignoring a very real possibility of getting same-sex marriage in these states from a federal court under the Perry v. Brown standard. Of course, if the governor of one of these states is unfriendly to gay rights, he/she could appeal to the Supreme Court and they may very well be reviewing the merits of this decision anyway.

  • 22. Bill S.  |  April 10, 2012 at 7:41 am

    Just saw on that Lambda Legal has filed a federal lawsuit in Nevada using this reasoning!

  • 23. Kathleen  |  April 6, 2012 at 2:29 pm

    You're welcome, PoxyHozes, and I'm glad I'm able to help bring clarity to the legal proceedings. They're not nearly inaccessible as people might think and, as I'm sure everyone is aware, this is our lives they're talking about!

    Thanks, Bill S., for the additional info. I was exhausted when I got home last night and didn't get back here. I completely agree that glbt people meet all the requirements for strict scrutiny and I just hope someday the Supreme Court will agree. This will be the real turning point for protecting our rights in the courts; it is very difficult for a law to withstand strict scrutiny.

  • 24. The Justice Department sh&hellip  |  April 5, 2012 at 4:59 pm

    […] of rational basis is applied. (more in the extended entry) You may view the latest post at Rate this: Share this:EmailTwitterLike this:LikeBe the first to like this post. Posted by […]

  • 25. phoenix  |  April 6, 2012 at 12:30 am

    Isn't the Ninth Circuit due to decide on en banc review right about now? Do they take a week off for Spring Break or anything? I recall people here settling on April 6 as the approximate deadline for a decision on en banc. If they don't work on Fridays, will we hear on Monday, or has the clock stopped a few times in the past six weeks?

  • 26. Str8Grandmother  |  April 6, 2012 at 2:38 am

    phoenix, Leonard Link posted a really informative article on this. This article has really lowed my expectations. Arghhhhhhhh….

  • 27. Bill S.  |  April 6, 2012 at 5:27 am

    Unfortunately, courts can issue their rulings at their pleasure. There are no codified time restraints.

    The example in that article is inexcusable. It should not take 7 months to vote to deny an en banc review on a MOTIONS APPEAL! That case in that article isn't even referring to a decision on the merits, but rather a preliminary injunction issued by the judge halting the implementation of the law until an actual decision on the merits is reached.

    Perry v. Brown is *supposed* to be on an expedited schedule. So hopefully we'll have a decision by the end of this month. This may very well go to an en banc panel.

  • 28. phoenix  |  April 6, 2012 at 11:10 am

    In the comments on this post from last month people were talking about a five-week timeline (as mandated by the court's own procedures), but that didn't include any "time outs" for judges like O'Scannlain to circulate dissents.

  • 29. Kathleen  |  April 6, 2012 at 2:19 pm

    Yes, subsequent to that comment in the earlier post, I confirmed with the clerk's office that there is no rule setting a deadline for the court's decision. Those rules govern internal procedures, but there are a lot of side-trips the procedure can take. That said, I don't think we're looking at a 6-month time frame… or at least I HOPE not!

  • 30. noinfo  |  April 8, 2012 at 11:38 am

    Very poor information. I have been searching on line about same sex marriage in CA, and this site came up several times. I am sorry, but its a bunch of oppinions, and people bitching, but VERY little current info.Would love it if you would actully show the current facts about what is occurning with Prop 8. I would love to get married, yet you give no info?????? Just bitching people. You suck for this cause I so much support!!!!

  • 31. Bob  |  April 8, 2012 at 11:56 am

    perhaps you could try searching ,,, by clicking on the side bar under CATAGORIES,,,, and click on the one that says prop8 trial

  • 32. Ann_S  |  April 8, 2012 at 12:53 pm

    Did you see the tab in the right-hand column titled "Where Things Stand with the Prop 8 Trial"? That will take you to this link:

    The current status of the Prop 8 trial is set out there.

    If you ask politely people will answer any specific questions you have. Same-sex couples will not be able to marry in California until the Prop 8 case is resolved. Hopefully we will win and then we will have marriage equality in California again.

  • 33. Bill S.  |  April 9, 2012 at 6:13 am

    Same-sex couples cannot currently get married in California. There you go. Goodbye.

  • 34. bayareajohn  |  April 8, 2012 at 8:42 pm

    Or maybe the very first sentence on every page here, right under the banner art, that says
    "Want to know where things stand with the Prop 8 trial?"
    That's a link.
    Welcome to the Internet.

  • 35. bayareajohn  |  April 8, 2012 at 8:45 pm

    Oh, congratulations, by starting off with insults while asking for help that you really could find yourself if you looked, you are clearly getting into the spirit of the Internet.

  • 36. Prop 8 Trial Tracker &raq&hellip  |  May 24, 2012 at 12:01 pm

    […] on any basis whatsoever, not even rational basis scrutiny. That was during the oral argument in Gill v. OPM/Massachusetts v. HHS at the First Circuit Court of Appeals: One of the most interesting parts of yesterday’s hearing […]

  • 37. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:22 am

    […] in favor of upholding the law, for BLAG. Notably, the oral argument at the First Circuit was the first time the Justice Department suggested that they were not going to defend Section 3 of DOMA “on any basis.” Before, […]

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