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Culhane: Legal analysis of Obama Administration decision to stop defending DOMA

February 24th, 2011 Leave a comment Go to comments

Yesterday’s bombshell letter from Attorney General Eric Holder to Speaker of the House John Boehner has generated explosions of glee, hysteria, and more than a bit of political and legal analysis.

Yet it remains difficult to get a fix on exactly what the decision by the Obama Department of Justice no longer to defend the Defense of Marriage Act actually means – for DOMA itself, and for the broader question of whether marriage equality is constitutionally required.

Let me raise and then answer the most vital questions, and then try to place this development into a broader context.

Which part of DOMA has been challenged in these cases?

Only section 3, which provides a restrictive federal definition of marriage, stating that “the word `marriage’ means only a legal union between one man and one woman as husband and wife.”

This means that, even when a particular state (such as Massachusetts, in the cases currently on appeal) decides to grant full marriage equality to same-sex couples, the federal government will ignore that decision and treat the couple as though not married in all areas under its control: taxation; immigration; social security; and many others.

The suits challenged that portion of DOMA, saying that it unconstitutionally trammels states’ rights to determine their own rules for marriage.

Why did the DOJ suddenly decide to stop defending DOMA?

Leaving the political analysis to others, let me address the legal question. This will require a few steps.

Holder’s letter reiterates that the DOJ had been making only a narrow argument in defense of DOMA, and only in one particular court.

The federal district court of Massachusetts, where the first two cases were brought, sits within the First Circuit. The court of appeals for that circuit had precedent, binding on the lower courts, that discriminations based on sexual orientation were to be evaluated only to see whether they had a rational basis – a very deferential standard that generally results in finding that the law under challenge is constitutional.

And the DOJ had argued in two Massachusetts cases that under this binding standard of review, DOMA was “rational enough.” Congress could sensibly have concluded that the status quo on marriage should be maintained at the federal level while states sorted out these complex legal and cultural issues.

But now two new cases have been filed in courts within the Second Circuit (in New York and Connecticut, specifically). The Second Circuit, unlike the first, has no “binding precedent” commanding that sexual orientation discrimination be judged by a rational basis test. Therefore, the DOJ undertook its own evaluation of whether rational basis should apply – and found that it should not. DOMA should instead be evaluated under a more searching “heightened scrutiny” standard, under which the law…fails. So DOMA is therefore no longer defensible.

What arguments did DOJ make in support of this higher standard of review?

The DOJ examined the factors the Supreme Court has said are relevant to deciding what level of review applies. A group will qualify for heightened scrutiny when it (1) has historically been the victim of societal discrimination; (2) is singled out for a characteristic that is immutable, obvious, or distinguishing; (3) is politically powerless; and (4) when the characteristics that distinguish the group relate neither to legitimate policy objectives nor to that group’s ability to contribute to society.

The letter then applies each of those factors and finds that, under any fair assessment, gays and lesbians are entitled to this higher scrutiny.

While the analysis of each was necessarily brisk given the context, I will admit to some concern that the letter seems to rely on a finding that sexual orientation is immutable. Better, I think, to follow the more nuanced approach by recent state courts (including the California Supreme Court) to argue that, whether strictly immutable or not, sexual orientation forms so deep a part of personal identity that it’s unreasonable to ask people to hide or change it.

I heard Maggie Gallagher say that the letter equates sexual orientation discrimination with racial discrimination. Is that right?

No. Although the letter (oddly) doesn’t specify the precise level of scrutiny the DOJ believes should be used, it’s clear enough from the cases it cites and the language it quotes that intermediate scrutiny is seen as the appropriate standard. That’s the standard used for gender discrimination, while laws based on race are placed under the hot light of strict scrutiny.

But laws that are evaluated under the intermediate level rarely survive, either. There must be good reasons for the law, not ones invented “for actions in fact differently grounded.” (The letter is quoting from United States v. Virginia, the 1996 case that rejected Virginia Military Academy’s justifications for excluding women.)

So what did Holder say about the Administration’s previous defense of DOMA under rational basis?

His comments were startling. Here we have the AG basically stating that its defense until now had been based on pure conjecture about some permissible rationales Congress might have had for enacting the law – which is acceptable under rational basis analysis.

But heightened scrutiny requires looking at the actual justifications, and it was clear to the DOJ that DOMA’s passage was based on “moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Now what? Will DOJ continue defending DOMA in its current appeal to the First Circuit?

Not as I read the letter. It seems that, having decided that strict scrutiny should apply in one circuit, the DOJ isn’t going to continue taking a contrary position in another circuit.

Is DOMA effectively dead now?

No. First, the letter makes clear that the Administration is going to continue enforcing the law as long as it still exists. That’s proper; whatever the controversy over whether the Administration must defend the constitutionality of laws it disagrees with, it is generally accepted that its role as a coordinate branch of government requires it to enforce the law while it’s in force.

But as to what happens with the cases, and therefore ultimately with the law, the issue is much, much murkier.

Why? Doesn’t the case just…disappear?

No. The letter is highly significant but not binding on the judiciary. The courts could still hold the law to be constitutional. They could reject the arguments for heightened scrutiny or conclude (somehow!) that DOMA meets this higher standard. But the highly unusual decision by the Executive Branch not to defend a law that it believes has no “reasonable” justification is likely to affect judges and, ultimately, even Supreme Court Justices.

But who will defend DOMA now? Does Congress have standing? Do its members? And what if they don’t?

I spent much of yesterday afternoon reading opinion pieces, law review articles, Supreme Court cases, and talking to experts on federal courts trying to figure this out. Here’s what I’m coming up with, in an area where the degree of difficulty is ten:

It’s the job of the DOJ to defend these laws, not the job of Congress. Think about this from the separation of powers perspective: Congress enacts the laws; the Executive defends them. One colleague said: “The more I think about it, the more convinced I am that Congress can’t defend the law.”

The letter was conciliatory on this point – expressing DOJ’s “interest in providing Congress with a full and fair opportunity to participate in the litigation” – but it’s the courts that will decide whether Congress (or its members) have standing.

There have been occasions when Congress had standing to defend a law, but the cases I’ve seen in support of this right involve power struggles between the two branches of government: Does Congress have the power to do something, or does the President? This isn’t such a case.

But in any case, expect the courts to do something to make sure the law is defended. Amicus briefs might be one way to achieve this, even at the Supreme Court level. After all, the DOJ is still in the case, and might be asked by the courts to articulate the arguments for constitutionality, even if it doesn’t actually agree with them.

Is it possible that section 3 of DOMA could be declared unconstitutional by the First and Second Circuits, yet still be in force in other circuits?

Yes, in fact it’s likely, at least until the Supreme Court weighs in. Cue logistical nightmare, as federal agencies may have to deal with laws that will in effect vary depending on the whether DOMA still exists in a particular place.

Politics aside, is this a dangerous precedent? Will this embolden future Presidents not to defend any law they happen not to agree with?

That’s a concern I’ve seen expressed in a few places, and it’s not entirely unreasonable. If Obama loses in 2012, could his Republican successor refuse to defend the constitutionality of the health reform act?

Sure, but I think that would happen in any case. If the Administration strongly believes there’s no sound constitutional argument in favor of defending DOMA, there’s precedent from both parties for refusing to defend it. That discretion should, of course, be used sparingly.

Is it possible to argue DOMA is unconstitutional while still refusing to come out in favor of marriage equality?

Well, that’s exactly what Obama is still doing. I side with Dale Carpenter on this issue: It’s very hard to craft any argument that DOMA is an indefensible discrimination against gays and lesbians, but that the exclusion from marriage equality is OK.

You read it here first: I now expect a Presidential statement in favor of marriage equality before the next Presidential election.

What’s going on? Hawaii enacts a civil union law, Maryland clears the final real hurdle to passage of a marriage equality bill, and this. All in the same day? Have we reached a tipping point?

I don’t know, but Wednesday, February 23, 2011, may be long remembered as one of the best days in the history of our struggle.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: http://wordinedgewise.org. He is a contributor to Slate Magazine, and the editor of and contributor to a just-released book, Reconsidering Law and Policy Debates: A Public Health Perspective, now available on Amazon.com.  His chapter is on marriage equality.

  1. Jay
    February 24th, 2011 at 09:08 | #1

    Thanks, John, for the cogent analysis. Another thing that happened yesterday was that Olson and Boies petitioned the Ninth Circuit to lift the stay against Judge Walker’s decision in Perry v. Schwarzenegger on the grounds that the delay (because of the certification to the California Supreme Court re the standing of the proponents of Prop 8) of up to another year before a final decision is intolerable. Any chance of it succeeding? I read the motion and it seems convincing to me, but then I don’t think Judge Walker’s decision should have been stayed in the first place.

  2. February 24th, 2011 at 09:11 | #2

    thank you for an excellent summary of the finer legal points. i know this is just the tip of the iceberg.

  3. February 24th, 2011 at 09:14 | #3

    This is just one opinion about the politics: I think it’s easier to challenge DOMA in this limited way, because it continues to let states duke it out for ourselves, and the federal government will just follow along with the definitions of marriage set up in the states.

    If someone wanted to make progress on DOMA–and claim it as a political win–this is the path of least resistance. It’s also very pragmatic, given that the U.S. House is not likely to pass any pro-gay-rights legislation in the next few years.

    >You read it here first: I now expect a Presidential statement in favor of marriage equality before the next Presidential election.

    This makes sense to me. Obama’s smart. He knew that being pro-marriage-equality would have hurt him in the 2008 election, and he’s “getting it” that not being pro-marriage-equality in 2012 will hurt him. He’s nothing if not pragmatic.

  4. Morgan
    February 24th, 2011 at 10:20 | #4

    Not so fast in declaring this marriage bill clearing the final hurdle here in Maryland. Preliminary vote in MD Senate committee sent the MD marriage bill to the MD Senate floor for debate. The final vote here in the MD state Senate not until today Thursday or some say Tuesday next week and so there is still chance for filibuster or other screw-up here in MD since today is not over yet as far as the final MD Senate vote on this bill is concerned. Until the final vote on this bill in the MD Senate is over and 24 or 25 votes on our side needed to pass this bill are recorded, this bill is not safely on its way. We just assume and hope it’s safely on its way since that appears likely and since we at least know that the required 24 or 25 Senators at least saying they will vote yes a to pass this bill have been found and I trust they will come through for a final Senate yes vote on this.

  5. Morgan
    February 24th, 2011 at 10:38 | #5

    Again DOMA is not dead. It’s just not defended any more by the DOJ. We cannot forget that it is still in force until Congress repeals it or the judicial branch of the US government declares DOMA unconstitutional (Congresswoman Diane Feinstein Dem from California wasted no time in offering a bill for the federal DOMA’s immediate repeal as soon as Holder stated an intention of the DOJ to quit defending DOMA)
    Holder and Obama are declaring DOMA unconstitutional but still in force therefore will not defend it as they have no power to rescind it. That is a matter for the legislative or judicial branches to take up themselves. Obama and Holder by not defending DOMA anymore are leaving DOMA out there for attack by other branches in the government with the actual power to do away with DOMA.

    So DOMA is alive and in force but now without DOJ defending it, more vulnerable to eventual attack and to repeal efforts from some current or future session of Congress, etc.
    This is just a first step down to the eventual demise of DOMA and the first congressional bill attempting immediate repeal of DOMA is the second step toward its end.
    But to call DOMA actually dead at this time is premature.

  6. Morgan
    February 24th, 2011 at 10:42 | #6

    Oh, sorry the lawsuit against DOMA from the state of Massachusetts was a first blow against it. But an effort coming from parts of the US government itself might be what will really sink DOMA in the end.

  7. truth be told
    February 24th, 2011 at 10:45 | #7

    I’ve been saying for years that DOMA is UN-Constitutional not only because of the Equal Protections Clause, butals because of the Full Faith & Credit Clause.

    I do not understand how any law that can EXEMPT ITSELF from certain provisions of the Constitution could EVER be consider ‘Constitutional’ in the first place.

    Can any lawyer explain this to me? Please.

  8. Jay
    February 24th, 2011 at 11:44 | #8

    truthbetold, the Full Faith & Credit Clause is not at issue in the litigation that the Justice Department says it will not defend. At issue is section 3, which says the federal government will not recognize same-sex marriages even from the states in which same-sex marriages are legal. Section 2, which says that no state is obligated to recognize the definition of marriage in another state, is not under legal attack right now. When it has been litigated, two federal district courts have upheld it.

  9. mchlndrwrchr
    February 24th, 2011 at 11:50 | #9

    Any possibility that the DOJ might be forced to defend DOMA by a side court battle at the Supreme Court level? Instead of simply losing the battle, perhaps pulling out will actually make the battle drag on longer and result in a greater time during which marriage discrimination is still in place at the federal level.

    And, I don’t actually expect Obama to come out in favour of marriage equality. I feel it’s far more likely that he sees this particular law as discriminatory because it disallows those in “equal marriage” states from participating at a federal level. However, this decision to stop defending DOMA doesn’t necessarily lead to a desire to force all states to accept equal marriage…at least not yet.

  10. truth be told
    February 24th, 2011 at 12:04 | #10

    @ Jay,

    “the Full Faith & Credit Clause is not at issue in the litigation that the Justice Department says it will not defend”.

    Yes, I know that. (Please re-read my post where I said the “not only … but ALSO …” parts – even though my keyboard didn’t successfully spell it right – BAD keyboard).

    What I want to know is WHY it isn’t.

    If you could, please direct me to a link about the FF&CC where you said: “When it has been litigated, two federal district courts have upheld it.” I would appreciate it.

    My question is and was: How any law that can EXEMPT ITSELF from certain provisions [i.e EITHER the FF&CC OR the Equal Protections Clause] of the Constitution could EVER be consider ‘Constitutional’ in the first place?”

    Any lawyers out there that can ‘splain me this???

  11. truth be told
    February 24th, 2011 at 13:07 | #11

    You KNOW it’s time to repeal this blatantly unjust, UN-Constitutional law when its author says it is:

    No defending the Defense of Marriage Act
    by Bob Barr

    “In 1996, as a freshman member of the House of Representatives, I wrote the Defense of Marriage Act, better known by its shorthand acronym, DOMA, than its legal title. The law has been a flash-point for those arguing for or against same-sex marriage ever since President Clinton signed it into law. Even President-elect Barack Obama has grappled with its language, meaning and impact.

    I can sympathize with the incoming commander in chief. And, after long and careful consideration, I have come to agree with him that the law should be repealed.”

    More at link:


  12. jimsabeach
    February 24th, 2011 at 13:16 | #12

    This was an extremely good analysis by Mr. Culhane – however it neglects to mention one crucial aspect of DOMA which is not even touched by the Attorney General’s letter: The section of DOMA which allows individual states to not recognize other state’s gay marriage laws is left intact even though the general legal theory is that this clause is patently in violation of “full-faith and credit” clause of the constitution. Section 3 defining marriage as between men and women can be struck down by any state, say Mississippi can refuse to recognize marriages consummated legally in Massachusetts, Vermont, Connecticut, Iowa, New Hampshire, DC and soon to be Maryland. This has already happened in Texas. This is an important clause which must be repealed.
    Let us also take care, as Mr. Culhane points out, that until declared unconstitutional by the Supreme Court, DOMA will continue to be enforced – it is still the law of the land and with the Republicans in charge of the House of Representatives, the odds of repeal are infinitesimally low and practically non-existent. Congress and the Federal Government will continue to practice legal discrimination, states will continue to refuse to recognize legal marriages entered into elsewhere, and other states, like Hawaii, will pass half-way, second-class trash status civil unions.

  13. vanndean
    February 24th, 2011 at 15:24 | #13

    Can any lawyer explain this to me? Please.

    Truth be told Said–While I am not a lawyer, I think that I can tell you what you want to know.
    If you will read the section of the constitution which is known as the “Full faith and credit clause” (Article IV, Section 1, Paragraph 1, Line 2)you should have your explanation. Line 1 explains who is affected by the Full Faith and Credit Clause, but it is line 2 which tells us that it is the Congress which by general law(DOMA)prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
    Under the Powers granted by the Full Faith and Credit clause to the Congress, DOMA was enacted and the effect of the legislation described what the effect was to be in relation to same sex marriage by the Federal government. That is the way it was explained to me, not by a lawyer, but by a government professor. I can only hope that is some help, but if you still want an opinion by a lawyer, maybe one will kindly speak up.

  14. michaelandfred
    February 24th, 2011 at 16:01 | #14

    @jimsabeach. From what I understand, the “full faith and credit” clause of DOMA were not challenged in the law suit. Only those pertaining to the federal government and the 1,138 rights tha go with civil marriage. The Mass. lawsuit only sued over articles 2 and 3. I’m not sure what the New York and Connecticut law suits were fighting exactly, but it’s pretty mute since the DOJ won’t defend DOMA at all now since they have decide we need protected status and that they feel DOMA is unconstitutional.

    Perhaps the Second Circuit will address the full faith and credit issue when dealing with the whole of DOMA, but I don’t know if it is the executive branch’s responsibility, or even possible, to deal with this part, only the parts that pertain to them on the federal, not state level.

  15. February 24th, 2011 at 17:09 | #15

    Federal law allows an administration to decline to defend a law it a finds unconstitutional. Congress enacted that statute. There is no “dangerous precedent.”

  16. Jay
    February 24th, 2011 at 18:10 | #16

    truthbetold, the full faith and credit clause is not before the courts currently in relation to DOMA because the litigation does not challenge the section of DOMA that says that states are not required to recognize same-sex marriages performed in other states.

    In the two cases in which the full faith and credit clause was evoked to force states to recognize same-sex marriages performed in other states, the district courts rejected the claim. The argument was that Massachusetts could not be allowed to redefine marriage in Mississippi.

    That section of DOMA may be vulnerable to challenge, but section 3 is much more vulnerable because the federal government has never before attempted to define marriage differently from a state’s definition of marriage. It seems to violate the tenth amendment, which grants states unenumerated rights, including traditionally the right to regulate marriage, as well as the equal protection clause of the fifth amendment. Lambda Legal and the ACLU LGBT Rights Project have decided to strike at the most vulnerable part of DOMA, section 3, rather than the right of states not to recognize same-sex marriages performed in other states.

    See the discussion of the Defense of Marriage Act at glbtq.com, the encyclopedia of gay, lesbian, bisexual, transgender, and queer culture, which describes the cases challenging DOMA, including the ones that were filed early and rejected by the courts, as well as the ones currently being heard by courts.

  17. MRMNP
    February 24th, 2011 at 19:51 | #17

    Thank you professor for your narrow interpretation. How about following up with your opinion of the effect of this decision on the thousand or more federal benefits now denied to same sex marrieds such as immigration treatment raised early in your post?

    Surely with different circuits deciding differently, this issue will be fast tracked to the Supreme Court.

    Under equal protection, surely a Mass. married same sex couple with one spouse being an alien will be treated equally with same sex couples in the same class by the immigration folks? IRS? etc?

  18. February 24th, 2011 at 20:49 | #18

    Full faith and credit: This has always been a weak provision of the Constitution. It applies to acts and records, but mostly court judgments. Such state court judgments should be shown deference by sister state courts, a concept known as comity. However there is a huge loophole. A state not need not show full faith and credit for legislative acts of a sister state if it has a “strong public policy” that is contrary. Just what is “strong public policy”? No one really knows, but if a state has a constitutional provision against a sister state’s policies, you can bet that would constitute strong public policy by most federal courts. The few states that are currently silent on marriage equality, like RI, would be the best places to pursue a FF&C claim as there is no legislation to qualify for the strong public policy exemption to FF&C. Here’s SCOTUS: the FF&C does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events. Pac Emplrs Ins 306 U.S. 493, 502 (1939).

  19. truth be told
    February 24th, 2011 at 21:24 | #19

    re: “The argument was that Massachusetts could not be allowed to redefine marriage in Mississippi.”

    But this isn’t really about a definition. It is about a legally binding contract. I thought ALL contracts legally binding in one State were to be legally binding in all other States.

    Still no one is addressing the fact that the DOMA exempts itself from these Constitutional provisions. How can that be LEGAL, let alone Constitutional?

  20. February 25th, 2011 at 09:19 | #20

    Could someone other than a lawyer aswer the question please?

  21. February 25th, 2011 at 10:25 | #21

    Lots of questions and confusions on full faith and credit, which are understandable given the complexity of the issue. If I have some time later, I will try to elucidate.
    Meanwhile, keep in mind that the section under challenge in the cases in both the First and Second Circuits deal only with section 3, which is the place where Congress purported to define marriage to exclude same-sex couples.

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