Dr. Jillian T. Weiss

What The Obama Administration's Decision on DOMA Means

Filed By Dr. Jillian T. Weiss | February 23, 2011 7:00 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: DOMA, Pedersen v. OPM, Windsor v. United States

Alex reported earlier today on the big news about the Obama Administration's announcement that it will no longer defend the constitutionality of DOMA in court, and that it believes that statutes discriminating on the basis of sexual orientation should be held to a higher level of scrutiny by the courts.

I won't reiterate Alex's post, and all the statements from the various organizations he posted there. However, there are probably a lot of you scratching your heads and wondering what this all means. After all, as recently as October 2010, the Obama Administration had indicated that it would continue to defend DOMA vigorously, and that it considered itself bound to do so by law. As recently as January 2011, it appealed a couple of DOMA cases in which the law was ruled unconstitutional, although fortunately it avoided some of the more explicitly homophobic arguments.

Now comes the Attorney General, and says that DOMA, and in fact, all laws involving sexual orientation, should be held to a "heightened standard of scrutiny." What does that mean, and how broadly does that affect other areas of discrimination based on sexual orientation? What about gender identity discrimination?

I will review the letter that Attorney General Holder sent to Hon. John Boehner, Speaker of the U.S. House of Representatives, to advise him of the Administration's changed position, and, in the words of the DOJ press release of this afternoon, to give Members of Congress an opportunity to defend the statute, and to ensure that Congress has a full and fair opportunity to participate in pending litigation.

The letter from the Attorney General is complex and written in legal jargon. I will explain everything.

The Honorable John A. Boehner
U.S. House of Representatives
Washington, DC 20515

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

Here, he says that DOMA violates "the equal protection component of the Fifth Amendment." As any student of the U.S. Constitution knows, there is no equal protection clause in the Fifth Amendment. The "equal protection" concept comes from the 14th Amendment, passed 70 years or so after the original Constitution, and it says that States cannot deny their citizens the equal protection of the laws. The intent of that was to stop States from imposing onerous legal restrictions on the freed slaves after the Civil War.

The "equal protection" concept became so popular in legal circles that the Supreme Court decided that it should be read into the Fifth Amendment, even though it isn't actually written there. Thus, when the Fifth Amendment says that the government can't take away its citizens' life, liberty or property without due process of law, it really includes the idea that it cannot deny them the equal protection of the law. That's why the Attorney General's letter speak of the "equal protection component" of the Fifth Amendment, rather than the "Equal Protection Clause" of the Fifth Amendment.

In any event, the Department of Justice has examined two ongoing lawsuits challenging DOMA, and realized that the intermediate federal courts in which these cases will be heard have not quite figured out the equal protection concept themselves. Skipping forward a bit in the Attorney General's letter:

In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

This here is a mouthful. It begins by saying that the federal appeals court that will hear these cases, the Federal Circuit Court of Appeals for the Second Circuit, has not issued a ruling on statutes that discriminate based on sexual orientation. By contrast, in the past cases defended by the Obama Administration, those Federal appeals courts had issued previous rulings saying that sexual orientation discrimination was perfectly fine and dandy. Thus, the Obama Administration did not feel comfortable trying to argue otherwise in the lower federal trial courts, where those judges have to follow the appeals courts' prior rulings. But in these new cases, in federal courts in Connecticut and New York, the appeals court hasn't made any such ruling on whether sexual orientation discrimination is legally permissible or not. Thus, the Obama Administration feels fewer qualms about making the argument that DOMA, with its explicit discrimination against same-sex couples.

But what is "equal protection of the laws?" As I noted above, it was originally employed to say that governments cannot make laws that discriminate against African-Americans. However, others soon realized that the language of the 14th Amendment did not specifically mention African-Americans. Rather, anyone who is treated different by a statute or other law can complain about unequal treatment.

There is a problem with this argument, however. Any statute or law is, by its nature, a rule that discriminates in favor of some subjects and against others. A law licensing optometrists, for example, lets some people make glasses, and others can't do it or they get put in the pokey. That's discrimination, but it's not illegal discrimination, and there's the rub. The courts ruled that a denial of equal protection only occurs when a statute discriminates against people "similarly situated." If you're "differently situated" from others, then it's okay to discriminate against you.

This "differently situated" test can't refer to every different situation. For example, one cannot make a successful argument that certain people are differently situated by being a member of a different race. The whole idea of the 14th Amendment is that race isn't a factor that can be used to discriminate. An example of a factor that can be used to discriminate is education. People with certain education can become lawyers. Those who don't have it, cannot. Over time, the courts developed two tests to help them distinguish the types of things that can or cannot be used to discriminate among people. The first is called the "rational basis" test, and the other is called the "strict scrutiny" test.

I discussed these tests previously in regard to the Massachusetts DOMA litigation, when Judge Tauro issued his ruling striking down DOMA using, among others, the concept of equal protection. Here's what I said there:

The Equal Protection Clause means there must be a reason for treating people differently. But since most legislation includes some people and excludes others, the courts allow a good amount of leeway on this. As long as there's some good reason for the classification, the courts aren't going to look too closely.

Except where the legislation gets jiggy with a fundamental constitutional right, like freedom of speech or the right to get married (straight marriage only, of course), or a classification that is considered suspect, like race or religion....or, maybe, sexual orientation(?). Then judges are supposed to use "strict scrutiny" to analyze the law with laser beams.

Government laws judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.

When judged under the regular standard, called "rational basis" scrutiny, laws are usually found to be perfectly fine and constitutional.

So you can imagine that the GLAD legal team wanted "strict scrutiny."

But Judge Tauro knocked down the idea that DOMA deserved strict scrutiny. He said he wouldn't use laser beams to analyze the law strictly. Instead, he'd look at sexual orientation like any regular old legal classification In a constitutional case. He'd just give it the once-over like most laws get, and that usually leads to judges saying the law is fine and dandy. [Note on today's (2/23/11) AG announcement: The Obama Administration is taking the opposite position, and saying that DOMA should be looked at with "strict scrutiny."]

In saying that, he defined his job as limited to deciding if 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.

But, surprisingly, Judge Tauro didn't give DOMA the old rubber stamp. Instead, he said DOMA was unconstitutional, even under the minimum standard! Pretty surprising.

So Judge Tauro only required the Federal Government to come up with some rational basis. That's a fairly low standard. Even so, Judge Tauro rejected the Feds' argument, saying their basis for DOMA didn't make any sense.

(Interestingly, he said that the Government's purposes are fine -- but they're not actually related to the law. That's particularly interesting, since I wrote a law review article on this very point -- the little-understood "rational relationship" requirement -- last year: Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas)

By contrast to Judge Tauro's ruling in the Massachusetts case, where it was held that sexual orientation discrimination should be analyzed under the minimum "rational basis" standard, Attorney General Eric Holder concludes, in his memorandum, that sexual orientation discrimination must be strictly scrutinized by the courts. That would mean that DOMA will have a very tough time standing up to such judicial scrutiny.

I will speak more about this tomorrow, in part II, where ENDA comes to the rescue of DOMA.

(Click here for Part II, "Your ENDA Ran Over My DOMA")

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Don Sherfick Don Sherfick | February 23, 2011 8:58 PM

Thanks so very much for that thorough explanation; I look forward to the remaining section(s). Since many years have passed since my constitutional law classes, I had forgotten (if I ever learned) that the federal courts ultimately read a 14th Amendment-type "equal protection" gloss into the FIfth Amendment. This is very big indeed; however, the success for our community in the current cases cited won't in themselves suddently requre states that prohibit same-sex marriages (by law or state constitutional amendment) to recognize them. But some additional groundwork will have been laid because of the adoption of a strict scrutiny test concerning sexual orientation.

Good point, Don. I note that the AG's memo doesn't call for strict scrutiny, but heightened scrutiny, which could include strict scrutiny or some sort of intermediate scrutiny. But I wonder. If, indeed, sexual orientation is a suspect classification and it is subject to heightened scrutiny, wouldn't that mean that laws calling for one man and one woman in a marriage are subject to that heightened scrutiny?

It means he'd like DOMA defeated in the courts so he can claim credit and get our votes at the next election.

And it means he's covering his ass with bigot voters by staying on the sidelines while all this plays out in the courts, if it does.

With all due respect, Bill, I think that the Obama Administration deserves credit for this move. Not as much credit as if it legislatively overturned DOMA, of course. But this is still a pretty bold move.

Jillian, I think it's merits as a step forward don't have much bearing on the key question, which in my opinion relegates it to tactical posturing to help his CREEP efforts.

We've seen several charades like this recently from the WH and we'll see more as November 2012 draws nearer.

Remember Obama crocodile tears about the GOP attack on Wisconsin workers last week. What utter BS from the president who busted the UAW and shattered their contract.

Now Obama is condemning Republicans for not having a jobs plan. He's right but where is his multi-trillion dollar, Manhattan Project plan to use union hiring halls to create 15 million jobs and green industry, agriculture and the infrastructure.

It's in the same basket under his desk with his orders to pull out of Yemen, Iraq and Afghanistan and his orders to arrest and prosecute predatory bankers like Goldman Sachs for the loss of 15 million jobs and torching the economy and the outline of his plan to put his prestige on the line fighting for ENDA.

We won't see any of those measures because the Democrats betrayed everyone in sight and lost 20 million of Obama's 2008 voters and no longer can, assuming they ever wanted to, pass legislation for our benefit.

You remind me of the dirty little character in Peanuts, who had a rain cloud following him everywhere.

This IS a big f***ing deal.

Not big enough for your ilk, evidently. So be it.

I'm just devastated you feel that way.

It remains to be seen whether or not it's a big deal in the courts. Either way it's one step forward after dozens of step backward.


20 million plus people who voted for Obama in 2008 were disgusted by his administration and party, didn't vote for Democrats in 2010.

Don't be devastated.

Twenty million, huh? Did you ask every single one? Polling suggests you may (**gasp**) be wrong.

I wasn't.

What poll.

It means he'd like DOMA defeated in the courts so he can claim credit and get our votes at the next election.

And it means he's covering his ass with bigot voters by staying on the sidelines while all this plays out in the courts, if it does.

Thank you for all the work you put into making this understandable to the layman. It is appreciated.

Thanks for explaining that part of the memo, but what about the part where Holder says that DOMA doesn't meet the higher 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.

Is this going to be in part 2?

Yes, Alex, in part two. I don't write that fast. :)

IANAL. I'm not American. But 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.

I've seen too many "Rational Basis" cases where the claimed basis for the law was far-fetched, and had very little to do with the law itself.

I really like your definitions, Zoe, and I'm going to steal them for part two. There is an apt analogy between standards of review (the rational basis, strict scrutiny, etc.) and standards of proof (beyond a reasonable doubt, preponderance of the evidence, etc.)

The part I'm still wondering about doesn't seem to have been brought up anywhere. Maybe you'll cover it in Part 2. I want to know how making DOMA Section 3 unconstitutional affect the various state constitutional amendments against same-sex marriage? I live in Georgia and this news doesn't seem to have raised a blip on our radar. I'd like to think that there's hope to fight those hateful laws in court once the DOMA dust settles.

Monica, that's a really good question. See the first two comments above for a discussion of that issue.

I've been disturbed by the all the coverage that overlooks the fact that DOJ is talking about Section 3 of DOMA only. As some people have said above,states can still refuse to recognize marriages of same-sex couples performed elsewhere, even if Section 3 of DOMA goes down. I was shocked by the NPR coverage yesterday which did not differentiate the two parts of DOMA. And DOJ isn't saying that all bans on same-sex marriage are unconstitutional.

Don Sherfick Don Sherfick | February 24, 2011 9:02 AM

I guess that's just a constant "occupational hazard" in this 15 second sound bit/short attention span era, Nancy. Something similar is happening in Indiana in the debate over a constitutional amendment that would ban not only same-sex marriages but also anything "substantially similar", whatever that means. Headlines scream "gay marriage amendment", and any other nuances get totally lost. Likewise with the federal DOMA. The concept of a federal definition of marriage for federal purposes, and its discriminatory effect on couples validly married in some states, and the concept of whether or not one state has to recognize the same-sex marriages of another are not the same. But I guess it's easier to say: "All those darn-fangled laws look alike".

Excellent point, Nancy. It's only a step. But any step moving towards declaring sexual orientation a suspect classification is a big step. That could be used to invalidate DOMA section 2, could it not?

When do I get to marry my canary? Isn't that what this is supposed to be about? LOL

Excellent analysis, as always, Jill.

Ah, Bil, the love that dare not tweet its name.

Careful, Bil ... there is an ancient Buddhist saying, "Men who marry their canaries must be careful not to fart in bed."

Good question, Bil. I would venture to guess that marriage between a man and a canary would only be possible under the following circumstances:

a. both parties are mentally competent adults and fully capable of understanding the nature of the contractual relationship into which they intend to enter;

b. both parties are not under any disability, such as a previous marriage that was not terminated by divorce or annullment, held by a competent court to have been void ab initio in a declaration of nullity;

c. both parties have the requisite legal capacity;

d. canaries have been determined both scientifically and legally to be fully human or human-equivalent.

e. (fill in whatever I may have left out)

Bil, I would think that as long as proven mutual reproductive capacity is not a requirement (and, despite the moonings of some courts like the NEw York Court of Appeals, it isn't even a requirement for a heterosexual marriage, else the elderly and sterile would be out of luck) it would be more likely for the law at some point in the future to determine that a human could enter into a valid marriage contract with a very advanced humanoid robot with human-level or superior mental and emotive capacity, than it would be for you to marry your beloved canary at the present time.

Perhaps you might be willing to settle for a Canary Islander?

Don Sherfick Don Sherfick | February 24, 2011 3:15 PM

Which just goes to show that like all threads that start out serious and scholarly, ultimately the whole thing is for the birds!

lol. How about my horsey? I can't wait to make her an honest mare!

thank you for explaining this to us!