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.

DoJ gets one right, decides not to appeal Schroer decision

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.

Senate confirms Koh

On Friday, the Senate finally confirmed Harold Koh as Legal Advisor (the equivalent of General Counsel) to Secretary of State Hillary Clinton. The 62-35 vote came after four months of stalling tactics and fearmongering about whether Harold would be too receptive to non-U.S. law. What an idiotic waste. And it is long past time for the Senate to confirm Dawn Johnsen as head of OLC, and end the smear tactics directed at her.

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.

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.

 

(Probably the first) Openly gay U.S. Attorney appointed

President Obama has nominated out lesbian Jenny Durkan to be U.S. Attorney for the Western District of Washington. According to The Columbian:                   

"Durkan is a lesbian who lives in Seattle with her partner and two sons. It was not immediately known whether she would be the first openly gay U.S. attorney; the Justice Department said it does not keep track.

"A graduate of Notre Dame and the University of Washington Law School, and the daughter of late state Sen. Martin Durkan, Durkan represented Governor Christine Gregoire in her campaign for attorney general in 1992. She continued to provide counsel off and on through Gregoire's election in the razor-thin 2004 governor's race, which Gregoire won after two recounts and a court case. She also was counsel to Gregoire's reelection campaign last year.

"The White House also cited Durkan's broad experience in civil litigation and criminal defense. Former Seattle Mayor Norm Rice made her the first citizen observer of the Seattle Police Department's firearms review board, which reviews police shootings, and she has served on a bipartisan panel that helped select nominees for federal judgeships in Western Washington."

HT: Ruth Eiseberg; photo: The Advocate.