The Obama administration has announced that it will refuse to defend the constitutionality of the Defense of Marriage Act in lawsuits filed in Connecticut and New York.
Why now, rather than previously? Here’s DOJ’s explanation:
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 While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.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.
That’s a lot of legalese, but basically, it means that for the first time, the administration has publicly expressed its own view on the appropriate standard for reviewing statutes that discriminate based on sexual orientation. And it has concluded that the appropriate standard is not the (extremely deferential) “rational basis” standard, but rather a (much less deferential) “heightened scrutiny” standard. It’s not clear yet exactly what that means, but it could be as high as the “intermediate scrutiny” standard that applies to gender-based discrimination.
So this is a pretty big deal. I’m not sure I entirely buy the administration’s justification for not saying anything before now, but in this case, better late than never.
The announcement says:
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p>David, do you know what that means? Does Congress have to vote and agree to defend, or can an individual member do it? Seems like a very very rare situation, at best.
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p>I worry that we might see Ken Starr in court for Congress soon. I’m not sure what weight a court would give to DOJ’s decision, but I think I’d still prefer a half-hearted brief and oral argument from an ADA than what a hot shot, conservative legal team can put together.
I don’t know how this works, exactly.
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p>It seems like the administration has decided to stop defending statute X on what really amounts to political grounds. That seems like a decision that I am not thrilled to have the executive make.
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p>So, in the next Republican administration, bad-guy business groups band together and file litigation challenging the constitutionality of all environmental statutes on commerce clause grounds. Then the executive simply chooses not to defend the statutes. Poof, unconstitutional, because the present executive doesn’t like the challenged statute? That seems like a lot of new power to the executive.
It largely already happened to a certain extent under Bush. Civil rights, FACE act, environmental regs, not to mention the multitudes of signing statements (a practice Obama has continued but not as often).
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p>As for Congress, I think the issue is that individual members (or coalitions of members) can, like any organization with an interest, file an amicus curiae brief offering the court its view of the questions presented. Such briefs are common in politically charged cases and generally are drafted by top-flight legal talent.
If a President DOES defend a statute he believes to be unconstitutional he is the one not faithfully executing his office. Obama made clear, however, that he would continue to enforce it administratively, just not defend it judicially.
Obama swore to uphold the Constitution, but only sometimes if he feels like it, maybe. Weak, indeed.
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His failure to not defend the constitutionality does not make a law automatically unconstitutional. The courts get to decide that, and they still get to decide it with regard to DOMA.
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p>The oath to faithfully execute the office of the President does not necessarily include defending laws the President finds unconstitutional. I don’t know where you’re getting that from.
If I make a colorable legal argument that, say, environmental regulation is, in general, unconstitutional, and the executive decides that I’m right, and declines to defend the constitutionality of the statute, what is the result?
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p>In this DOMA case, it seems like the result is a default win for the plaintiff– which in my counter-ideological universe might mean that environmental regulation is unconstitutional in certain districts or circuits.
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p>Sure that doesn’t make the statute “automatically” unconstitutional– it just makes it unenforceable, at the whim (oops, honest and dutiful interpretation of the Constitution) of the President. I was under the impression that it was well-learned from 2001-2008 that the President’s whim (oops, honest and dutiful interpretation) of the Constitution is utterly without value.
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p>I don’t see this as any different from Bush’s honest and dutiful interpretation of the Constitution that allowed him to arrest, detain, and torture anyone at any time.
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p>The President of the United States is a subject of the laws of the United States. He gets to have a view on what those laws should be when signing bills; the judiciary gets the last word on constitutionality of duly-enacted statutes. If the executive has found a way to sort circuit that process for statutes the executive doesn’t support (but is to afraid to seek repeal), then that is a problem indeed (and I problem that I thought had been solved in January 2009).
He swore to preserve, protect, and defend the Constitution, and is doing so in the way he feels is appropriate.
ha, ha
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p>He thinks that DOMA is unconstitutional, so he won’t defend it, but not so unconstitutional that he won’t enforce it?
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p>DOMA remains in force, and affects every couple that has not sued to enforce their rights. Does he think every other couple entitled to those rights has to hire litigation counsel as well?
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p>This was a cake-and-eat-it-too solution. I am not impressed.
What would really make me happy is if someone could actually identify a dollar amount, say $15 million, that the government is projected to spent on lawyers defending this monstrosity of a law and shove that in the face of any Republican/Faux News idiot who says we must waste this money while cutting expenses in needed programs.
but not an altogether compelling defense of the DOJ’s prior position.
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p>The DOJ could have declined to spend large sums of federal money defending DOMA, and was certainly under no obligation to use the language that appeared in at least one of those briefs.
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p>In the long run it’s not terribly likely to matter. Assuming the district courts in NY and CT) accept the DOJ’s new reasoning, and are affirmed by the 2d Circuit Court of Appeals, a circuit split would exist. On such a key issue those are generally resolved by the U.S. Supreme Court taking the appeal and deciding the case. Given the composition of that court for the foreseeable future, guess which way they’re likely to go?
while the middle east is about to blow about as hard as Balkans circa 1914.
I suspected one of the reasons he won is that unlike the last guy, Obama has the ability to do more than one thing at a time.
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p>PS: The Middle East is blowing about as hard as Eastern Europe circa 1989/90.
These are briefs filed by AUSA’s in two districts. The position taken has almost certainly been approved higher up, but I’d highly doubt the President himself has spent more than a couple of minutes on the specific issue here.
if you read Holder’s statement, it’s pretty clear that both he and the president did talk about this. And I suspect that quite a bit more than “a couple of minutes” went into the discussion, not only because it’s legally not totally straightforward, but also because of the political ramifications.
Kerry applauds Obama’s decision, which is not a surprise as he called it unconstitutional on the Senate floor in 1996 and voted against it. Brown attacks Obama saying the Judicial branch decides – ignoring that the DOJ can decide to defend or not.
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p>http://www.boston.com/news/pol…
So DJ allows the NY and CT decisions to stand. But, because they don’t go before SCOTUS for ruling those decisions are only valid in their respective jurisdictions. Were DOMA’s constitutionality decided by SCOTUS, it would have national effect.
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p>Doesn’t seem to be a resolution.
In some explanations I’ve read it seems that they are only changing the standard for statues in states where gays have greater legal protection and are thus subject to a higher standard than ‘rational basis’, so doesn’t this mean that in states where gay marriage is banned outright or restricted in some capacity, the old standard still applies?
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p>Also what are the legal and policy reasons for the change (if any) or was this the administration continuing consolidating its left flank while realizing the timing made sense?