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July 03, 2011

A new (limited) line in the sand for Equal Protection analysis

The United States Department of Justice is now on record before the federal courts as supporting heightened scrutiny for sexual orientation classifications, at least in civilian contexts, and as seeking the invalidation of laws that bar legal recognition of same-sex marriages.  In In re Golinski, the Department filed In its first merits brief since Attorney General Holder issued a letter announcing that DoJ would no longer defend the constitutionality of DoMA. Although the brief does not go as far as I have stated in the first sentence, it is unlikely that a distinction could be drawn that would not extend its position to all civil law and to recognition of a marriage that was validly performed under state law.

The brief tracks the analysis of the Holder letter, but, because of the litigation context, it ratchets up the analysis from an explanation of why DoMA is too flawed to be defended to an argument that DoMA is unconstitutional and should be stricken. It's a subtle difference, but it gives the brief considerably more rhetorical firepower than the letter. Reading it drove home the point to me that this endorsement of heightened scrutiny is what the federal government will bring to every sexual orientation analysis for at least the next two, and hopefully six, years.

As the Veep would say, this is a big f**king deal. And although a Republican administration could and likely would reverse this position, that step would be seen as an extreme position. Boring as it might sound, the gay equality argument really has now become the new normal.

There is a but in this welcome development, though, and it's a big one. The DoJ argument is contingent on the court adopting a higher standard of review (DoJ takes no position on strict v. intermediate scrutiny - see fn. 13) than the rational basis standard. And rational basis is the standard that most courts have used to assess sexual orientation classifications (with differing results). DoJ essentially concedes that DoMA is constitutional under rational basis review. Footnote 14, page 18 reads (emphasis added):

Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.

 This dance-on-the-edge-of-concession language allows the Administration not to have to explicitly retract the arguments it made prior to the Holder letter, when it asserted that rational basis was the correct standard and that DoMA was constitutional.

 Golinski now has joined Gill v. OPM as a case to watch: the District Court has before it a brief filed by lawyers hired by House Republicans arguing that DoMA should be judged under the rational basis standard and upheld; the brief filed by the United States arguing that "Section 3 of DOMA fails heightened scrutiny;" and plaintiff's brief, arguing that DoMA is unconstitutional under either standard. 


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