Tag Archives: William C. Duncan

DOMA Dies A Lawyered Death


US Department of Justice:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

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   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.

Marc Ambinder at The Atlantic:

The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA — that it is unfair to gays and lesbians — is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.

Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.

“We recognize and respect that there are other points of view,” Carney said.

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

The president has won favor with the gay community recently by pushing for and winning repeal of the “don’t ask, don’t tell” policy for gays serving in the military, which the lame-duck Congress passed in December. At that time, Obama reiterated his support for repealing DOMA but did not take further steps.

Matt Welch at Reason:

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder’s letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM’s lead, even as IBM has followed its employees’.

William C. Duncan at The Corner:

There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).

The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.

Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.

Doug Mataconis:

It’s worth noting that when Judge Walker struck down California’s Proposition 8 last year, he used to lower “rational basis” test. Nonethless, Holder’s arguments in the letter are very similar to those Walker used in his opinion, and I won’t be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Bryan Preston at PJ Tatler:

Does a president have the power to unilaterally declare laws passed by Congress and signed by his predecessors “unconstitutional?” This strikes me as setting an extremely dangerous precedent.

Kevin Drum:

This, by the way, is a good example why I’ve never joined in the general condemnation of conservatives for “reigniting the culture wars” whenever they introduce an abortion bill or somesuch. I’m on the opposite side of these conservative efforts, of course, but the fact is that liberals started the culture wars in the 60s and it’s something we should be proud of. So while I oppose the conservative side of the culture wars, I approve of the culture wars in general, and I applaud Obama and Holder for reigniting it last year when Congress repealed Don’t Ask Don’t Tell and for reigniting it in the case of DOMA today. Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I’m happy to see it continue until there’s no more war to fight.

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Do The Pivot On DOMA Dance

A few months can change everything. Steve Benen:

In June, the Justice Department filed a brief defending the Defense of Marriage Act against a legal challenge, despite the president’s stated opposition against the law itself. Whether the administration was required to defend the law became the subject of some debate, as was the content of the brief itself, which was considered controversial among supporters of gay rights.

Today, the administration shifted gears on the matter.

President Obama hasn’t changed his policy, but he is softening his tone. Today, the Department of Justice filed a response to a legal challenge to the Defense of Marriage Act for the second time since Obama took office.

When DOJ first did this, its brief was full of rhetoric that appeared to supporters to be over-the-top and anti-gay. The White House — and the Justice Department — seemed to have taken the criticisms to heart. Their challenge in this case defends the idea that the government must defend constitutional laws — even wrong-headed ones, but notes that the Obama administration opposes the substance of the policy.

In an unusual and encouraging gesture, the White House issued a statement making the president’s position on the larger issue clear. The statement, distributed to groups supporting gay rights and appearing above the president’s name, said, “This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law.”

Chris Geidner at Law Dork:

Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter.  But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.

From the brief itself to Obama’s statement and in light of the other changes being advanced by the Administration, I continue to believe that the original DOJ Smelt filing was made without the full appreciation (or knowledge) by higher-ups.  I do think that the uproar following its filing has changed the approach of the Administration, and, for that, the debate was worthwhile.  This filing and statement show a keen awareness of and sensitivity to that impact, while maintaining a clear principle to defend a law that repeatedly has been found to be constitutional.

Dale Carpenter:

While the DOJ hasn’t retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs’ lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.

Consider this almost apologetic, but also uncontroversial, passage:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration’s anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn’t say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of “federalism.”

Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:

Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn’t know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states’ judgments that traditional families are best. While the DOJ hasn’t exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.

William C. Duncan at The Corner:

In other news, the U.S. Department of Justice has decided to express its disapproval of the federal Defense of Marriage Act in a brief in federal court. The case is a challenge to DOMA, and the Department of Justice is charged with defending the law, but it has chosen to repudiate the arguments in its favor embraced by the highest courts of New York, Washington, and Maryland. A straightforward legislative repeal would be the more honest approach, but the Obama administration seems to have decided that the easier route is to try to undercut the law with legal arguments, perhaps in the hope that they will be spared the effort of going through Congress if they can just get a court decision invalidating DOMA.


The case (read it here), you’ll recall, involves Arthur Smelt and Christopher Hammer, who want to get married but for that 1996 law President Bill Clinton joined Congress in passing. (Of course, the ex-prez no longer supports it.) It was filed in California court in December, bumped up to federal court in March, and has been lingering there between motions ever since.

And as the president has been quizzed on his stance on DOMA, and his promises to kill it, his mouthpieces have repeatedly said Obama stands by DoJ’s defense of the law.

So where does this leave us? Not to far from where we began: The White House’s lawyers are still going to defend DOMA, even while actively admitting it’s discriminatory. We don’t want to create analogies out of thin air here, but understand the nuance: If America had somehow managed to pass a federal law saying Latinos could not have children, the DoJ would defend it; if Congress and the president OK’d a law saying blind folks could not adopt, the DoJ would defend it; if we had a law on the books saying blacks could not get married, the DoJ could defend it.

Have we put the Justice Department in an impossible position, where they are required to defend laws at all costs, even those that blatantly violate equal protections statutes? Do we demand the federal government not pick and choose which laws to uphold and which to ignore — to our own detriment?

Carlos Santoscoy:

Lawyers for the Christian-based Alliance Defense Fund (ADF) said Monday that President Obama’s defense of the Defense of Marriage Act (DOMA) was not “optimal.”

As intervenor in Smelt v. United States, the ADF is promoting the argument that there is a government interest in “responsible procreation.”

In a Monday filing, the Department of Justice took a swipe at that argument, saying: “… the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.”

“It is very disappointing that the [Justice Department] has rejected the idea that kids do best in homes with a married mother and father,” ADF attorney Brian Raum told Baptist Press.

John Aravosis:

I guess this is a step in the right direction. I don’t want to fail to praise the administration for doing better, but to some degree the only reason this is “good” is because of how “bad” they did on the previous brief. In the end, they’re still defending a discriminatory law that the president himself has called “abhorrent.” The fact that they’re doing it more tactfully is, I suppose, nice – and they are no longer using language that undercuts us on a variety of other civil rights, so that’s good – but again, we’re praising them for no longer doing things that they shouldn’t have done in the first place. And in the end, they’re still defending discrimination.

Patrick Appel at Sully’s place

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