hunter of justice

Will DoMA case change the constitutional standard for sex/o discrimination?

    The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA.  Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws.  The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

    The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications.  The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

    In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups.  The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits -- these three assertions have fallen by the wayside.

    What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

    What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence.  If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

    The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group.  DoMA certainly fits the bill.

    Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time.  But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

DoJ's new tune on DoMA

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes below)  This puts the federal government on record as to these claims in a way that has never happened before. 

From the brief (emphasis is mine):

Under that deferential [rational basis] standard, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states....Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

...[T]he 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 [DoMA]. [Multiple professional groups] 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...[T]he 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 interest to defend DoMA's constitutionality.

In addition, the new brief emphasizes much more than the first one did that plaintiffs' challenge to DoMA can be dismissed solely on jurisdictional and standing grounds, without reaching the merits at all.

California update: No Prop 8 repeal vote likely in 2010 + One litigation challenge bites the dust

Organizations are starting to fall into place calling for a delay in taking Prop 8 back to the ballot until the likelihood of success is stronger. A coalition of groups, including the ACLU, issued a "Prepare to Prevail" statement, now joined by NGLTF. No surprise: according to polls, the numbers aren't there to win, and I think it is everybody's sense that the dollars aren't there either. Equality California is hosting a community summit on July 25. Although no final decision has been made, it looks to me like the outcome is now clear.

Meanwhile, the federal district court hearing the Smelt case dismissed the part of it that was a challenge to Prop 8. In a short order, the court ruled that because plaintiffs' marriage was preserved under the portion of the California Supreme Court decision that upheld the validity of same-sex marriages performed before the election, plaintiffs lacked standing. The claim challenging the constitutionality of DoMA survives, which means that the Justice Department's infamous motion to dismiss is now the only remaining matter on which the court has to rule before the case either goes forward or goes on appeal.

Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to "pedophilia and incest"

Big HT to Chris Geidner at Law Dork, who takes on the irresponsible attacks, led by John Aravosis, that accuse the DoJ brief in Smelt of comparing same-sex marriage to pedophilia and incest. Following is the detailed response that has been lacking:

John continues to write about “pedophilia” ... despite the fact that 16-year-old whose marriage was invalidated in the case cited in the brief — Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) — would today have reached the age of consent, if not the age at which a marriage would be found to be valid, in 32 states <http://en.wikipedia.org/wiki/Ages_of_consent_in_North_America#State_laws>... .  Moreover, as pointed out by PG in comments to the earlier post, this case was cited by none other than Lambda Legal in one of its own briefs <http://data.lambdalegal.org/pdf/252.pdf>  — for the same purpose it was cited in the Smelt brief.  The LGBT equality legal group wrote:

Conventional choice of law and comity principles are routinely applied in every state to address non-uniformity in many aspects of domestic relations laws, including disparities among states in the requirements for marriages or their dissolution.  See, e.g., Wilkins v. Zelichowski, 26 N.J. 370, 377-78 (1958).  These familiar legal tools, not the deprivation of the constitutional rights of a minority, offer the answer to any purported concern about uniformity with other states.

That John continues to write about “incest” is, as I have stated since the brief was filed, overstating facts in order to enrage.  One of the cases cited, Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961), is a regularly cited case in Family Law casebooks and law review articles regarding out-of-state marriage recognition.  For John, a lawyer, to repeatedly state that a lawyer citing a regularly cited case for a general proposition that “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” equates to the lawyer comparing same-sex marriages to incest is dishonest.  John knows that the brief is analogizing a state’s policy against recognizing one type of marriage to a state’s policy against recognizing another type of marriages.  Though a slight distinction, John knows that, as a lawyer, such distinctions matter.

The final case cited, In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957), is one with which I was unfamiliar but have found that both it and Catalano were cited by a Columbuia Law Review piece criticizing DOMA for “deep flaws in both aspects of the Act.”  Scott Ruskay-Kidd, Note, “The Defense of Marriage Act and the Overextension of Congressional Authority,” 97 Colum. L. Rev. 1435 (1997).  If opponents of DOMA have cited both of these cases since the year after its passage, then — as John knows — it would be bad-faith for a lawyer charged with defending the law to fail to raise arguments in its defense that previously have been raised even by opponents of the law.  Was this third case cite necessary?  Probably not, as the point was illustrasted by Catalano.  But to demonize the author of the brief and everyone on up to the President as comparing same-sex relationships to incest for doing so, as John has done repeatedly, is exceptionally unfair and dramatically overstates the proposition advanced in the brief.

New timeline in Gill v. OPM

Widely known as "the GLAD case," Gill v OPM is the Boston-based challenge to key portions of DoMA and is also probably the next case in which the Justice Department will have to file a brief on the constitutionality of that statute.  For various reasons, the plaintiffs plan to file an amended complaint, which will in turn push back the due date for DoJ's response. The expected new date for DoJ is September 18.  This is good news - it will give DoJ more time to think through its arguments and do the right thing....I hope.

The federal employee benefits memo as anti-climax

The President's Memorandum for the Heads of Executive Departments and Agencies is out. Criticizing it is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action. The only Cabinet-level department already to have taken any initiative whatever appears to be the State Department, which announced its reforms several weeks ago.

In his remarks, the President also restated his support for legislation granting benefits to partners of federal employees that cannot be achieved administratively, and for repeal of DoMA.

A few observations on the hype and the real possibilities:

* Although the President claimed in his oral remarks (see below) that it is the product of a "long and thorough review," the memorandum itself reads much more like a directive to senior management to assess what can be done quickly. It really is the kind of memorandum that should go out in the first weeks of an administration, and easily could have, if anyone had been on top of these issues during the transition. This same memorandum could have been drafted in December and issued by the end of January. And if it had been, the lgbt community would have been thrilled.

It's clear from the specific examples that the White House identified in supporting materials that the administration has done some research, although at least one benefit they claim credit for is old news. But the absence of specifics from the memorandum itself strongly suggests that this project was interrupted to create an event before all the work was done. OPM is directed to effectuate the new benefits it has identified, but all the other departments (except for State) seem to be getting the message to start looking now.

The main problem, of course, is that there are statutes that curb who is eligible for certain benefits. A federal statute explicitly limits enrollment for health insurance and pension benefits to an employee and members of his/her family, 5 USC 8905(a); and another section defines "member of family" to include only a spouse and unmarried dependant children under 22, 5 USC 8901(5). The first of those provisions eliminates the option of creating a new category for domestic partners (which DoMA would not prohibit). And when you combine the latter provision with DoMA' s limitation on "spouse" to different-sex marriages, there's not much space for action.  

* There is also a section of the memorandum that directs OPM to issue guidance within 90 days to insure "compliance with and implementation of" a longstanding federal law that prohibits discrimination against federal employees based on factors "not related to job performance." Who knows where this will lead, but it seems to invite OPM to "guide" federal agencies not to discriminate based on gender identity.

This section of the federal civil service law is the backdoor path used by lgbt advocates in the 1970s, who obtained a "clarification" from the Civil Service Commission that this general standard - not related to job performance - covered discrimination based on sexual orientation.  In the 1990s, President Clinton brought the rule out of the closet by explicitly adding sexual orientation to the Executive Order prohibiting discrimination against federal employees based on race, sex and religion. Adding gender identity to that Executive Order is what President Obama should have done tonight. So maybe this step will get gender identity to where sexual orientation was 30 years ago. Which is to say, it's better than nothing.

* Lastly, I couldn't help but note the stark contrast between the language of the memorandum and that of the non-binding comments of the President when he signed it. (Full text of his remarks is after the jump.) The operative document, to be published in the Federal Register, frames the problem as the federal government's inability to match private sector employee benefits. Its introduction concludes: "Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and brightest employees." How inspiring.

The President's remarks, by contrast, open with a reference to the "the long overdue progress in our nation's pursuit of equality," and he isn't talking about equality with the private sector. No, it's about people being "denied basic rights [because] the people that they love are of the same sex." That's nice.  Too bad more of that kind of equality didn't make it into the only document that matters.

OPM Director John Berry and OPM General Counsel Elaine Kaplan are good people. I wish them the best of luck in moving forward. Reforming the nation's largest employer is incredibly important. And it won't be easy.

Small steps: State Dept finds path around DoMA

GLAD is announcing the "first victory" in its challenge to DoMA: an amendment to the State Department's Foreign Affairs Manual, effective immediately, that lifts the bar on using the "married name" of a same-sex spouse on that person's passport. The passport name issue is one of the claims, now presumably moot, in Gill v. OPM. The new policy is stated in a letter from DoJ to the GLAD lawyers. 

The workaround DoMA comes from a pre-existing State Department regulation that provides that "a name change will be recognized for purposes of issuing a passport if the name change occurs [by] [o]peration of state law." 72 Fed. Reg. 64,930 (Nov. 19, 2007).   It should not have taken a federal lawsuit to achieve this, but it did, it's done, and GLAD can rightly claim credit.

Funny how this change also came about yesterday, together with the news that a memorandum on DP benefits shall cometh forth tonight from the White House. And maybe even that overdue Executive Order adding gender identity to the existing order barring discrimination against federal employees?  All happening just as the lgbt protests over the Smelt brief gained traction, moving from the blogosphere to the media, picking up support from high-dollar homo's (credit for that great phrase to Craig Hoffman) who were threatening to pull big dollars.

Message to the White House: the lgbt community is not oblivious to the massive number of issues on the President's plate. Pacing change is sensible, so long as the pace shows some speed in a reasonable time and so long as the change is meaningful. But the careless, tin-ear missteps are starting to mount: Rick Warren, cutting Gene Robinson out of the HBO broadcast of the inaugural concert, the casual tone of statements that DADT is backburnered for the indefinite future, the Smelt brief... Who's in charge over there?

When does the Justice Department decline to defend statutes?

Much of the flamethrowing in the blogosphere about the arguments filed by the Justice Department defending the constitutionality of DoMA concerns the extent to which Justice has the discretion not to defend a federal statute. Everyone agrees that taking such a step is extremely rare, but not unknown. I have been unable to find any DoJ document that sets out the criteria for making an exception to the rule that statutes will be defended.

What has come to my attention, though, is the following commentary posted on Balkinization by Marty Lederman four years ago. Marty was an attorney with the Office of Legal Counsel at DoJ during the Clinton administration, and he is back there now as a deputy assistant attorney general. Marty wrote this post in 2005 while he was a professor at Georgetown Law, in the context of assessing a 1990 brief filed by then DoJ attorney John Roberts. Roberts' brief declined to defend federal laws setting a preference for awarding broadcast licenses to entities with a certain level of minority ownership. The key sections from Marty's post are below; the entire post is after the jump.

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes -- i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches -- the Congress that voted for the law and the President who signed it -- have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)

A decision not to defend DoMA obviously could not be justified by either exception 1 or 2. As to the third category, although President Obama has gone on record calling for the repeal of DoMA, I am not aware of any statement by him that he believed DoMA to be unconstitutional. (Readers - please correct me if I am mistaken.)  I think that a good argument could also be made that a decision not to defend a statute could be based on well-reasoned federal appellate court decisions (below the level of the Supreme Court).  Unfortunately, no court has ever found DoMA to be invalid, although only a small number of decisions, all by trial level courts, have concluded that it is constitutional.

In short, while it is not impossible for DoJ to refuse to defend DoMA, it would be an extraordinary act for them to do so. I continue to believe that defending the statute while simultaneously contributing real muscle to a repeal effort is an understandable course for the administration to follow, even though my own belief is that DoMA fails even a Romer v. Evans rational basis test.

That said, how DoJ defends it makes all the difference. What is important now is for DoJ to file a completely rethought and rewritten brief when its response is due a week from Friday (June 26) in Gill v. OPM (the challenge brought by GLAD).

UPDATE: It is very likely that the plaintiffs in Gill v OPM will file an amended complaint this week, which will reset the clock for when DoJ has to respond. New due date for the response will probably fall in late summer.

 

First Obama DoJ brief defends DoMA as constitutional

Yesterday the Justice Department filed its first brief defending DoMA since the Obama administration took office. DoJ argued that DoMA satisfies the Due Process clause because there is no fundamental right to federal benefits associated with marriage, thus largely sidestepping the question of whether the right to marry is fundamental for same-sex couples. [As a back-up, however, the brief argued that the summary affirmance in Baker v. Nelson more than 35 years ago is still good law on the point that there is no federal constitutional right to same-sex marriage. Baker v. Nelson was the appeal from a federal court ruling that Minnesota did not violate the U.S.Constitution by denying a marriage license to a gay couple. The U.S. Supreme Court affirmed without an opinion. 409 U.S. 810 (1972)]

The brief also argued that DoMA's limitation of federal benefits to different-sex spouses does not violate equal protection rights because, under rational basis review, Congress has the flexibility to limit marital benefits to the kind of marriage recognized by all 50 states.

The brief was filed in support of DoJ's motion to dismiss the complaint in Smelt v United States, the most recent iteration in a one-couple campaign (against the advice of the advocacy groups) to challenge the marriage exclusion in California.   The primary defense argument appears to be lack of standing: DoJ argues that Smelt cannot challenge the validity of DoMA because he has not applied for and been denied any federal benefits.

Given the standing argument, there's a good chance that the court's ruling in Smelt may not even reach the merits of the constitutionality of DoMA. But you can bet that a similar version of this brief from DoJ, based on the same arguments, will be filed in two weeks in federal court in Boston. There, a much better crafted case filed by GLAD challenges DoMA's constitutionality on behalf of a number of married Massachusetts couples, all of whom have applied for and been denied the federal benefits that are the subject of that suit.

It is clear from this brief that DoJ will be carrying out its role of defending the constitutionality of DoMA, as it does for all federal statutes almost without exception. These lawsuits - especially the one filed by GLAD - could help nudge Congress to repeal DoMA. And it is in Congress where the heaviest obligation rests on the Obama administration to make good on its stated desire to see the law repealed. The repeal effort cannot be successful overnight, but the President should lead it, not wait passively for the congressional Dems to send legislation to him.

The Smelt case also challenges the constitutionality of Prop 8. The California AG's office filed a motion to dismiss that part of the case, arguing that the plaintiffs lack standing to bring that claim because their marriage is unaffected by Prop 8, since the California Supreme Court upheld the validity of marriages performed before last November's election.

The Justice Department brief tries to put a benign spin on Congress's adoption of DoMA by casting it as a choice to recognize for purposes of federal benefits only those marriages recognized by all states. Only problem is ...that's not true.  Before DoMA, the feds recognized any marriage that was valid in an individual's state of residence, and the states differ on recognition rules for some different-sex marriages (such as between first cousins). Federal law still accepts marriages not valid in all states, with the one exception of same-sex marriages.

What's missing from the brief is also interesting.  The Justice Department did not rely on the legislative history of DoMA, which contains a lot of anti-gay language about the purpose of the law. The Justice Department did not offer deterrence of homosexuality as a justification for upholding DoMA. Small consolations.

Excerpts from the Justice Department brief after the jump.

Cheney repudiates premise behind Section 3 of DoMA

Cheney says that it should be "up to the states" and that he rejects the need for a federal statute. Will he lobby to repeal Section 3 of DoMA, the provision governing federal benefits that overrides state law on who can marry? Are you holding your breath?

Nadler to lead charge against Section 3 of DoMA

Lots of lgbt law types are having lots of conversations about repealing parts of DoMA and extending federal recognition to couples in civil unions. Most of the strategy development centers on Section 3 of DoMA, which directs the federal government to recognize only different-sex marriages for purposes of all federal laws and regulations.

Now The Hill - Congress's own neighborhood rag - is reporting that Rep. Jerry Nadler is prepping a DoMA repeal and modification bill that staffers want to move after hate crimes and ENDA:

Once hate-crimes legislation and ENDA are passed, a measure sponsored by Sens. Joe Lieberman (I-Conn.) and Susan Collins (R-Maine) and Reps. Baldwin and Ileana Ros-Lehtinen (R-Fla.) that would provide domestic partner benefits to federal employees will hit the floor. They hope to introduce the bill next week.

“This is long overdue and I think this is the year to do right by so many lesbian and gay workers with partners,” Ros-Lehtinen told The Hill. “The federal government is the nation’s largest civilian employer, and it’s about time [gays and lesbians] receive these benefits.”

Meanwhile, Rep. Jerry Nadler (D-N.Y.) will offer a measure to strike at the heart of the law that hurts the chances of gay marriage the most, though his bill is considered a long shot. Nadler will move to eliminate Section 3 of the Defense of Marriage Act, the 1996 law that defined marriage as the “legal union between one man and one woman.”

Opponents argue this is an attempt to chip away at the controversial law. “Instead of killing the Defense of Marriage Act with a bang, they plan on killing it with a whimper,” said Tom McClusky, vice president for government affairs at the Family Research Council.

Supporters of gay-rights measures are concerned that conservative Democrats will make up a larger bloc of votes than centrist and socially libertarian Republicans who might back the proposals. Baldwin said members of the LGBT caucus have been holding conversations, especially with newer members, and many have been receptive.

“Part of this is generational,” Baldwin said, noting that younger Americans tend to be more accepting of gays and lesbians. “Part of the upside of all these great new members is that many of them are young and they represent their generation’s attitudes.” House leaders support the measures, but Senate Democratic leadership refused to speculate on when they would be brought up.

Married-in-Massachusetts plaintiffs challenge constitutionality of DoMA

Six married same-sex couples and three surviving spouses in Massachusetts are filing a federal lawsuit today challenging the application of DoMA to federal employee benefits, taxes, Social Security benefits and passport rules. In a 92-page complaint, the lead lawyers at GLAD have spelled out in great detail how each plaintiff has suffered material harm from losing a benefit or status to which they would be entitled had their spouse not been a same-sex partner. (Summary also available)

UPDATE: The case was assigned to Judge Joseph Tauro.

The case asserts just one legal theory: that each plaintiff suffered a violation of the Equal Protection Clause. For most of the examples, plaintiffs assert that DoMA "creates a classification that treats similarly situated individuals differently without justification." For some, that assertion is qualified that DoMA "as applied by" the particular agency amounts to a violation of the Equal Protection Clause.  For the employee benefits claims, plaintiffs assert that DoMA does not require a denial of benefits, but that the defendant Office of Personnel Management (OPM) has adopted "an improper and overly narrow construction of the permissible bounds of OPM's authority to extend coverage to family members." This is no doubt a nod to the statutory construction argument used by Chief Judge Kozinski in the Ninth Circuit to support his decision ordering that health benefits be extended to the same-sex spouse of a court employee.

The new case - Gill v. Office of Personnel Management - does not challenge the prerogative of states to refuse to recognize same-sex marriage. It is targeted at the discriminatory effects of Section 3 of DoMA, which directs the federal government to recognize only heterosexual marriages as valid for purposes of federal laws and programs.  The lawsuit essentially seeks to restore the pre-DoMA federal policy of relying on each state's law for determining the validity of the marriages of its residents. The plaintiffs are arguing that the federal government should treat them as married because they are lawfully married under Massachusetts law.

Gill v. OPM is also not a facial challenge, but an as applied challenge, meaning that it does not assert that Section 3 of DoMA is always in every situation unconstitutional, but only that it is unconstitutional as applied to these plaintiffs, regarding the specific benefits in question. Framing the case in this way will force the court to focus in on these carefully selected facts and parties. Although that framing technically means that any relief they obtain will also be limited to the named plaintiffs, the practical effect of winning would be to change the rules for the programs that are under challenge.

The big question, of course, is whether they will win.  The answer to that is likely to turn on two things and on the interaction between them. 

• The first is how the federal courts - potentially up to and including the Supreme Court - will interpret the 1995 decision in Romer v. Evans, which struck down a Colorado state constitutional amendment that established a separate and more difficult process for enacting laws prohibiting sexual orientation discrimination. The Supreme Court found that Colorado had no legitimate reason for adopting the provision, because singling out a group of citizens for unequal treatment across many areas denied them the equal protection of the law. The plaintiffs here argue that DoMA similarly has no purpose except to instantiate second-class citizenship.
• The second dynamic will be happening across the street from the Supreme Court. This lawsuit will not surprise supportive members of Congress, who have been briefed on it. Nothing will happen immediately.  But if the plaintiffs win a positive decision in the lower courts, that may contribute to a move to repeal at least this section of DoMA. 

The second piece will depend on whether Democrats hold onto large majorities in the 2010 and perhaps 2012 congressional races. As things now stand, the first piece will depend on this guy named Kennedy.

First cracks in the DoMA wall

In decisions concerning personnel matters for court employees in the Ninth Circuit (based in San Francisco), two individual judges of that court have ruled that, notwithstanding DoMA, benefits must be extended to the same sex spouses of the employees. In In re Golinski, Chief Judge Kozinski construed the Federal Employee Health Benefits Act in such a way that its definition of family members as a spouse and children set the floor for who can be included, but was not as an exhaustive list.  In other words, he ruled that extending benefits to a same-sex spouse was merely a permissible extension beyond the minimum requirement, not a violation of DoMA's command that federal agencies must define "spouse" only as heterosexual married partners. Hmm. It's a stretch, but it gets the job done.  Kozinski acknowledged that if he didn't construe it that way, he would have to consider whether DoMA is constitutional, which "is a hard question." To analyze its constitutionality, he writes, "I would first have to decide whether such an exclusion furthers a legitimate governmental end.  Because mere disapproval of homosexual conduct isnt' such an end, the answer to this question is at least doubtful."

In the other matter, In re Levenson, Judge Reinhardt declines to adopt Judge Kozinski's interpretation of the statute, and confronts head-on the question of whether DoMA is constitutional. His logic in finding its application to employee benefits to be unconstitutional is succinct: the primary rationales for its enactment - "the government's interest in defending and nurturing the institution of traditional heterosexual marriage"  and "defending traditional notions of morality" (quoting the House Report) - are not legitimate state interests. "If the denial is designed to 'defend' traditional notions of morality by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the 'bare desire to harm' same-sex couples that is prohibited under City of Cleburne and Romer." In a move clearly designed to emulate Romer,  Reinhardt also notes that the denial of health benefits has too attenuated a connection to discouraging same-sex marriage to provide a rational basis for the action.

These rulings concern only the individual personnel matters, and do not constitute precedent. Inevitably, however, they will encourage other challenges to DoMA. In addition to the 18,000 same-sex couples who married in California before Prop 8, there is an ever increasing number of such couples in Massachusetts and Connecticut. It's only a matter of time....

The defense of the defense of marriage - and post Prop 8 right-wing rhetoric

With the Democrats having control of the White House and Congress, there won't be any federal marriage amendment moving anywhere in the coming Congress, and probably no time soon, if ever again. As icing on the cake, its chief sponsor in the House - Marilyn Musgrave of Colorado - was defeated last month.

So the anti-equality crew is reframing the congressional debate as one over whether to save DoMA from future efforts to repeal it.  Toward that end, right wing politics now has a new web page if not a new idea.  The Alliance Defense Fund has launched Protect DoMA. Aside from a northern Virginia P.O. box, Protect DoMA's chief asset appears to be a hunky Latino "model and actor" endorsing its message.

What is most interesting to me about this new angle on the old arguments are the clues that it contains to the right's long-term strategy, coming off their victory in passing Prop 8.

First is the unabashed emphasis on Latino Americans:

The Alliance for Marriage Foundation will work to continue to expand our education and mobilization efforts – especially within the Latino community

These folks are doubling down their bet on Latino-American cultural conservatism. Another theme, embedded in the quote below, is Latinos' status as the largest and fastest growing minority in the U.S.  In other words, these are the young people who the right is counting on to disprove the conventional wisdom that as soon as the over-65 set dies off, the young adult demographic will legalize same-sex marriage:

Groups on the Left generally take Latino votes for granted.  But the Pew Forum on Religion and Public Life is the latest research foundation to document that this dynamic does not apply with respect to marriage and the family.  On the contrary, support for marriage and family within the Latino community runs deep.  This support is expressed when Latinos are given an opportunity to vote on the issue of marriage itself. 

U.S. Census data shows that Latinos are the fastest-growing ethnic group, representing the largest minority in the country. According to data from 2005, there are approximately 42 million Latinos in the United States, which represents approximately 1 in every 8 residents.  In fact, a majority of children entering high school, workers entering the workforce and newly-eligible voters will be Latino by 2020.

Also interesting to me is what's missing - religious rhetoric.

In the years ahead, ProtectDOMA.org will continue to build a broad movement – with a positive message that has mainstream appeal --- in order to deliver the margin of victory in the struggle to protect marriage for the sake of our children and grandchildren.   At the same time, we will also continue to develop leaders who can give winsome expression to the timeless values that are essential to the well-being of our nation.

You gotta hand it to them there: Eduardo is nothing if not winsome.

One sign of this post-sectarian rhetorical strategy at work is a phrase that I've started to see on various right-wing sites: "the common-sense definition of marriage."  Not the "traditional" and certainly not the religious definition, but the friendly, unthreatening "common-sense" definition. Sure sounds to me like these folks have gotten a PR makeover; they are seriously trying to sound contemporary, even downright cool.  Like, not your grandfather's anti-gay bigotry.

The umbrella organization behind Protect DoMA - ADF - is probably the leading litigation shop trying to curtail same-sex relationship rights. Although its advisory board is loaded with clergy, it also has half a dozen law professors, including John Coons of U-C Berkeley (emeritus), John Finnis of Notre Dame, and Mary Ann Glendon of Harvard.

This is the face of the future -- on the other side.

LGBT legal goal: five in four

The bittersweet combination of the Prop 8 loss and the Obama win, combined with the Dems picking up more seats in both houses of Congress, means that a much greater focus on federal-level policy-making is in the offing in lgbt politics. In thinking about what should be prioritized, the first cut is between what the new Congress can do and what steps can the new administration take with confidence that Congress won't overrule a progressive initiative.

There are certainly lots of possible goals, but I would suggest two executive orders and three major pieces of legislation as the primary targets for the lgbt rights movement over the next four years. Five in four, you might say. Not that these should be the only objectives: there is much that can be done at the congressional and agency levels as well.

I would argue, however, that these five would be the most effective and pragmatic solutions to the issues facing the largest number of lgbt Americans.

• President Clinton issued an executive order that prohibited discrimination against federal employees based on sexual orientation. President Obama should add gender identity to the list of prohibited bases for discrimination. One method would be by defining either "sex" or "sexual orientation" in the current order to include gender identity and expression. He has strong legal grounds for doing so, especially if the new language is added to the definition of sex discrimination, because he can invoke the ruling in Schroer v. Library of Congress, in which a federal court held that it was a violation of the sex discrimination aspect of Title VII to withdraw a job offer made to a transgender woman.

  President-elect Obama has committed his administration to support anti-discrimination laws that include protection for gender identity and expression. If that means anything, it should mean that he will be willing to actually make that policy a reality for federal employees. And as a matter of principle, it's a good thing for the federal government in its capacity as the nation's largest single employer to impose anti-discrimination obligations on itself before applying them to other employers.
  

• Another important signal from the White House on employment matters will come if and when President Obama adds sexual orientation and gender identity to the list of prohibited grounds for discrimination by private companies that have contracts with the federal government.


• On the legislative side, the top priority is for Congress to pass an inclusive ENDA. This would make the first two points unnecessary, but I don't think that a trans-inclusive ENDA will get to the floor of either house until 2010, at the earliest. The executive orders could be issued any time after Obama's inauguration.


• Also legislatively, repeal DoMA (especially the part limiting federal government recognition of marriage to those between a man and a woman, even if state law provides otherwise). And enact, perhaps as an amendment to DoMA, a provision that grants all federal benefits and rights and responsibilities under federal law that now go only to married persons to persons in a family relationship status formally recognized under state law. In other words, eliminate the differential that persons in civil unions now face because their status has zero standing under federal law.


• Lastly, reform the health care system so that every American - whether married, single, partnered or living in a cave - has access to health care. This may not be solely an lgbt issue, but it is a fact that persons in unmarried partnerships have much higher rates of uninsurance than even the abysmal U.S. average. And health care benefits are probably the number one material issue that drives the family recognition agenda. Let's solve that problem at the root.

What I think should be the priorities don't necessarily have anything to do with sequence. As Rep. Tammy Baldwin has said, the first lgbt issue that Congress will move on is hate crimes, because it should be fairly easy legislation to pass (although of what great effect I've never been certain). The splashiest, most symbolically rich action would be a repeal of DADT. I certainly support that, but I don't rank it in my top five.

Political vagaries that we can't foresee now may affect some of these calculations, and one has to be ready to recalibrate if events demand that. But for now - five in four. Let's keep our eyes on that prize.