Oh, the irony of it. ENDA, the putative Employment Non-Discrimination Act, would have prohibited employment discrimination based on sexual orientation and gender identity. It was supposed to be first on the list of legislative accomplishments of the Obama Administration for the LGBT community, according to an early speech by a key Administration official. But it died a lingering death, with only whispers of support from the Administration here and there, while Don't Ask, Don't Tell repeal surged ahead, then behind, then ahead again. Trans people were particularly sensitive to this game, as ENDA definitely had the votes in the House, and probably enough votes in the Senate if the Administration would have twisted a few arms, and it would have protected trans people from employment discrimination, while even with Don't Ask, Don't Tell repeal, trans people are still banned from the military. O tempora, O mores, O conspiracy theories!
In any event, here is the marriage issue, again politically surging ahead of trans rights, about which I have certainly whined before, and will again. But I must admit that, upon seeing the devilish use to which the Holder DOMA memo put the denial of ENDA, fastening the undead coffin of evil marriage inequality with nails of ENDA, I was tickled.
More about that later. First, back to the memo, where further delicious ironies await us.
Standard of Review
Standard of review is a strange concept. As Projector Zoe Brain explained in her comment on Part I of this posting yesterday:
...It seems to me that the different levels of scrutiny can be described simplistically as:
Rational Basis - Discrimination is assumed innocent until proven guilty.
Intermediate - Discrimination is guilty if found so on the balance of probabilities
Strict - Discrimination is assumed guilty until proven innocent.
She is quite right in making an analogy to the standards of proof (beyond a reasonable doubt, preponderance of the evidence, etc.)
I have explained this before in regard to the case of a transgender employee, Vandy Beth Glenn, who was fired from her job as a proofreader with the Georgia legislature, on the basis of gender transition:
Now we get to a concept that has crossed the eyes of generations of law students: the "standard of review."
What this means is how much evidence do you have to have, and of what quality?
The "standard of review" is just like "burden of proof." In other words, you all know from watching TV that, in a criminal trial, the prosecution has to prove the crime, and not just a little bit. They have to prove it "beyond a reasonable doubt." That means that if jurors have any doubt in their mind that the defendant did it, any reasonable doubt, then the person has to be declared not guilty. The standard for reviewing the evidence is "beyond a reasonable doubt." It's a tough standard to meet.
By contrast, in a civil case, like one involving a personal injury or a contract, the standard for reviewing the evidence is "preponderance of the evidence," meaning that it's enough if the evidence shows that the charge is more likely than not. It's an easier standard to meet.
In a constitutional case, when the judges review the actions of a government official or the words of a law to decide if they violated the Constitution, the evidence must show that the classifications used by the Government are rationally related to a legitimate government purpose.
In other words, the Government can't just do crazy stuff and get away with it. It has to be related to some legit purpose.
But that's the minimum standard. It's easy to come up with some legit purpose. For example, "public safety" is the perfect catch-all. Just cite "public safety," mention 9/11, and the judges will stand up and salute pretty much every time. Government acts judged under the minimum standard of review are usually given the OK by the courts.
For certain kinds of Government actions, specifically those based on race, the U.S. Courts have been very suspicious since the 1950s. A lot of Southern States had laws making distinctions based on race, and they came up with some pretty ingenious justifications for them. So the courts said they weren't going to go with the minimum standard for cases like that. No siree, they were going to strictly scrutinize Government acts involving race, and look to make sure that those laws were narrowly tailored to meet a compelling government purpose.
Government acts judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.
But the U.S. Supreme Court got very nervous about the standard of review used for Government acts based on sex and gender. After all, they didn't want to invalidate all such laws, because there is a significant difference between men and women. So they came up with an "intermediate" level of review.
In a sex discrimination claim under the Equal Protection Clause, the Government classification must be "substantially related to an important government objective."
The words of this formulation aren't the most important thing. The most important thing to understand about this "intermediate" level of review is that it pretty much allows courts to do what they want in terms of upholding or, conversely, invalidating the law. It's not a rubber stamp, but it's not an automatic reject button either.
Thus, the question before Judge Story was whether giving Ms. Glenn the boot was substantially related to an important government objective. In fact, some courts have said the government objective should not only be "important," but even "exceedingly persuasive." The law is a word game.
In other words, did Brumby [the manager] have a good reason for kicking Ms. Glenn [the employee] out? Not just any reason, but an "important" and "exceedingly persuasive" one, though it didn't have to be "compelling."
I have also explained "standards of review" using jello and asparagus, for those of you who would like a different analogy.
Until now, law that discriminated based on sexual orientation was judged on the lowest standard, meaning that as long as there is some possible hypothetical rationale for the law, it's OK. Thus, as long as there is some rational basis, any rational basis at all for DOMA, and that rationale furthers some legitimate governmental goal, DOMA is constitutional.
The Holder DOMA memo says that the Obama Administration believes that test is too low a standard for DOMA.
But why is it suddenly too low a standard? It was a perfectly fine standard, according to the Obama Administration as late as January of this year.
Sexual Orientation As a "Suspect Classification"
Achieving "suspect classification" is the holy grail of civil rights litigators. When a law discriminates based on a "suspect classification," like race, then the courts must scrutinize the law much more carefully, and that is likely to make such laws unconstitutional and unenforceable. The reason that race became a "suspect classification" is that it involved a discrete and insular minority, which tended to seriously curtail the operation of the political processes ordinarily to be relied upon to protect minorities. Are LGBT people a discrete and insular minority who don't have access to political process to protect them? Until now, very few courts have thought so.
But in the case of gender, the US Supreme Court has found that laws that discriminate against women on the basis of gender are subject to heightened judicial scrutiny. Women certainly aren't a minority; they're half the population. Nonetheless, the Supreme Court held that sex, like race, is an immutable characteristic determined solely by the accident of birth, which violates the basic concept of our system that legal burdens should bear some relationship to individual responsibility. Over the years, the test for "suspect classification" status has undergone mutation. The Holder AG Memo states the current test as follows. Follow along and see if you think this describes the LGBT community:
(1) Whether the group in question has suffered a history of discrimination;
(2) whether individuals exhibit obvious, immutable or distinguishing characteristics that define them as a discrete group;
(3) whether the group is a minority or is politically powerless; and
(4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's ability to perform or contribute to society.
The Holder memo says that each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. It mentions that there is a significant history of purposeful discrimination against gay and lesbian people by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today, thus satisfying prong 1 of the test above. "Indeed, until very recently, states have 'demean[ed] the existence' of gays and lesbians 'by making their private sexual conduct a crime,'" citing the famous 2003 case of Lawrence v. Texas, in which the Supreme Court struck down the sodomy laws.
You know, Justice Scalia saw this coming. He said that once society recognizes that gay people have a right to exist, that would create a slippery slope leading to recognizing that gay people have a right to get married. I am constantly amazed by the number of times I agree with Justice Scalia. (Legal eagles will note that I sleep with Justice Scalia's quote from Oncale about the evils of legislators under my pillow each night.)
Next, the Holder memo discusses the second prong of the test above, citing, amazingly, uber-conservative Judge Richard Posner's execrable book, Sex and Reason. As Bill Eskridge (if I may be so bold; we did chat for five minutes oncst), a professor at Yale Law School whose work truly deserves the title of "genius," has noted, Judge Posner "uncritically accepts the sociobiological story of men-as-hunters, women-as-breeders that has been largely discredited in the academic community." Prof. Eskridge was also struck by Posner's "fascination with male sexuality -- whether homosexual or heterosexual -- and lack of interest in, or insight into, female sexuality." He also noted that lesbians are virtually invisible in a book that seems preoccupied with gay males. What ticked me off most about Posner's book was that it explicitly analyzed dating and marriage as a series of stark economic calculations worthy of Mrs. Bennet. It's a truth universally acknowledged that a single man in possession of a brain like that must be in serious want of a date.
So imagine my joy when the Holder Memo cites Posner for the proposition that "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable." There are many other works that could have been cited: Simon LeVay's work, for example, but no. It's Posner, the uber-conservative. Let the fundies fight against Posner! The fact that I find the man's work a bit lacking doesn't mean he's not incredibly smart and knows how to back up his points ten ways from Sunday.
The memo also cites the Don't Ask, Don't Tell repeal law as standing for the proposition that "it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination." This last proposition is surprising. It doesn't seem to be obviously related to prong 2 of the "suspect classification" test, which is about whether sexual orientation is an "obvious, immutable or distinguishing characteristic." I suppose that they threw it in there to counter the point that prong 2, as stated by the Holder memo, is broader than really warranted, and that there are lots of groups with obvious or distinguishing characteristics, like kleptomaniacs and circus clowns. (I'm not suggesting that these are appropriate analogies to sexual orientation, but rather are examples of "distinguishing characteristics," unrelated as they are to sexual orientation. Though I always did have my suspicions about Bozo.) To counter that obvious argument in advance, they are suggesting that the "fairness" of the discrimination is part of the equation, and that sexual orientation cannot be changed, only "hidden."
I have serious questions about the science that purports to declare sexual orientation an in-born characteristic, and I think many others do too. Thus, it is wise that the Holder memo does not go there with the likes of Simon LeVay. But that the characteristic is unchangeable I have no doubt, and, I think at this point in our society, very few rational individuals have any doubt of that either.
On to prong 3 of the Holder test. (Isn't legal reasoning exhausting? No wonder students are dropping like flies in my classes.But I do love it. And here's the ENDA part!)
Third, the adoption of laws like those at issue in Romer v. Evans (the striking down of the anti-gay Colorado constitutional amendment blocking anti-discrimination ordinances on sexual orientation), and Lawrence (the striking down of the sodomy laws), the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers."
Hoist on their own petard, the biter bit -- if you strike me down, Luke, I shall become more powerful than you can possibly imagine -- these sum up what's going on here. By managing to put the kibosh on the Employment Non-Discrimination Act, the Republican minority demonstrated, with considerable force, I might add, that the LGBT community doesn't actually have a whole lot of political power. Oh, we have more than we had ten, twenty, thirty years ago. But simple employment rights are denied us. To counter the argument that, "hey, the gays got Don't Ask, Don't Tell repealed and the hate crimes act signed into law," the memo goes on to note that it's not necessary to show that the group has zero political power. It uses an analogy to women's rights, wherein the Supreme Court noted that women had experienced historic discrimination and qualified for suspect class status, even though at that point they had received Title VII employment protections almost a decade earlier. The LGBT community doesn't even have employment protections, so we're in a worse position than women were when they were given suspect class status.
Don't get me wrong; I'm not at all glad that ENDA didn't pass. I'd much rather use my political power than rely on the fickle Constitution. And there is a counterargument to the Holder ENDA argument, found in the decisions of the early 1970's on sexual orientation discrimination, which said...but no, I'm not giving away any secrets. Go look it up. :)
The memo goes on to note that there are other federal Circuit Courts of Appeal that have not used suspect class status for sexual orientation. Indeed, none of those that have analyzed the matter have done so. But the memo notes that these were pre-Lawrence (the Supreme Court sodomy decision), and a lot of those decisions holding that sexual orientation doesn't deserve "suspect classification" relied on old law that's no good after Lawrence. In addition, some of those older cases denying suspect classification to sexual orientation also made points that "we do not believe can be reconciled with more recent social science understandings." That's a bit vague, but I do agree, and certainly this proposition can be backed up. It also counters the argument that recent decisions in favor of gay rights have used the lower "rational basis" standard for reviewing legislation. It notes that those decisions never actually came to a decision on whether the higher standard could or should be used, because they found that those laws failed even under the lowest standard. Thus, argues the memo, the fact that these courts applied the lowest standard isn't binding on either courts or the Obama Administration.
Some might quibble that the Administration could have done this before, even in federal Circuits where there is precedent to the contrary. After all, lawyers make arguments all the time, requesting that courts distinguish away what seems like binding precedents from higher courts, or rule that those binding precedents have been undermined by later, related developments in the law. The memo carefully counters this by noting that there is a difference between being able to make an argument, and considering that argument "reasonable." They could have made the argument, yes, but it was too difficult to back up and call it reasonable. I get it. I am not going to look a gift-horse in the mouth.
What Standard of Review Is The Obama Administration Calling For?
It's important to note that the Holder DOMA memo is not calling for the strictest standard of judicial scrutiny, the so-called "strict scrutiny" test. Under that test, proponents of the law must prove that the law serves a "compelling" governmental purpose, and that the law is narrowly tailored to achievement of that objective. Under that standard, almost no law discriminating on the basis of sexual orientation would be constitutional. Instead, the memo calls for the application of "heightened" scrutiny, sometimes called "intermediate" scrutiny. Under this middle-range test of constitutionality, the government must establish that the classification is "substantially related to an important government objective." It's a bit of a word game, but that is what the law is. This is similar to the standard used to analyze laws discriminating on the basis of sex (although that standard sometimes calls for an "exceedingly persuasive justification," a phrase not included in the Holder memo).
Under the intermediate standard, according to the memo, the justification for the law must describe "actual state purposes, not rationalizations for actions in fact differently grounded." This is important, because proponents of DOMA have come up with all sorts of rationalizations for the law that Congress, in its lengthy descriptions of why DOMA was needed at the time it was enacted, never used, and never apparently thought of. That's called "post-hoc rationalization," and it's a no-go under the intermediate scrutiny test. We saw this most recently in the California federal marriage litigation of AFER and Olson & Boies, where the legal team defending Prop 8 came up with all sorts of stuff about parenting deficiencies and teaching inappropriate sexual subjects to kids that had nothing to do with the reasons given for Prop 8 when it was originally proposed and enacted. This ties the anti-gay legal team with ropes of steel to the legislative record when DOMA was enacted, which is extremely thin in terms of reasoning that a modern court could accept.
As the memo notes, the legislative record of DOMA includes lots of moral and religious disapproval of gays and lesbians, which the Supreme Court, in other cases, has specifically said cannot under any circumstances form the basis for a law discriminating on the basis of sexual orientation. Thus, by noting that post-hoc rationalization may not be used, the memo effectively cuts short a lot of the hyperbole and rhetoric that came up in the Prop 8 cases.
None of this may convince the Supreme Court when this issue ultimately comes to it. After all, there's kind of a 5-4 split on the court in terms of conservative vs. liberal ideologies, although there's also a swing voter there who is often quite sympathetic to gay rights. But whether he'll go for the suspect classification reasoning is open to doubt. But this memo doesn't have to convince the Supreme Court. It simply needs to create a clear and logical argument for why the Obama Administration is declining to defend a U.S. statute in court, and answer the question "why now?" That it does, and quite clearly and concisely (as legal memos go).
Also interesting is that the memo distinguishes between "professionally responsible" arguments and "reasonable" arguments. In other words, a "professionally responsible" argument is one that a lawyer can make without the court calling it "frivolous" and imposing fines or jail time on the lawyer making it. The past Administration arguments defending DOMA were, apparently, non-frivolous ones. The Administration was not wrong for making such arguments (implies the memo). But even though there is a non-frivolous argument to be made in support of DOMA, such an argument is not a "reasonable" one. And here's the money quote:
Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional", as is the case here.
This is quite the blockbuster statement. Until recently, the President has never said that DOMA was unconstitutional, only that it was discriminatory. The implication was that he considered it constitutional, although the Administration was careful never to say so directly. Here at last, the President says that DOMA is an unconstitutional law. Wow.
Lastly, the memo notes that an argument is due in the Windsor and Pedersen cases on March 11, 2011. Boeher, et al. have about two weeks to get their pencils sharpened and their briefs ready.
And a delicious end to the memo:
Please do not hesitate to contact us if you have any questions.
Eric H. Holder, Jr.