Obama Administration Files Brief in DOMA Case

The DOJ has filed a brief in United States v Windsor, the case challenging the constitutionality of section three of the Defense of Marriage Act. The brief argues that section three of DOMA, which prohibits the federal government from recognizing same-sex marriages performed in states where they are legal, violates the Equal Protection Clause of the 14th Amendment:

“Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection…

The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

But there is one very important element of this brief. The DOJ is essentially banking on the Supreme Court deciding to apply a heightened standard of review in the case rather than the rational basis test, which is extremely deferential to legislative actions. The brief agrees with the 2nd Circuit Court of Appeals that heightened scrutiny should be applied and it lays out all of the familiar arguments for that conclusion. And in the end, the brief explicitly admits that the law would only be constitutional under heightened review:

The government does not challenge the constitutionality of DOMA Section 3 under deferential rational basis review, but Section 3 would fail a more searching form of that review.

I think this is a mistake. In the two previous rulings of great importance for gay rights, Lawrence v Texas and Romer v Evans, both authored by Justice Kennedy, the court struck down the laws being challenged even under rational basis review. Kennedy is pretty strong on gay rights, but he seems reluctant to declare that this is a suspect class and therefore subject to heightened or strict scrutiny. So it seems unwise to give up the argument that this law is unconstitutional even by the most lax standard the court can apply. You can read the full brief here.

8 comments on this post.
  1. Gregory in Seattle:

    Typical Obama wishy-washiness: issue a statement that looks great on the surface, but in reality is both gutless and without a backbone.

  2. Hercules Grytpype-Thynne:

    And in the end, the brief explicitly admits that the law would only be constitutional under heightened review

    I think you have a typo there. Don’t you mean unconstitutional?

  3. slc1:

    Re #2

    I think that Mr. Brayton meant to say that the law would only be constitutional under the rational basis test.

  4. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden:

    It’s not nothin that the administration thinks heightened scrutiny should apply.

    If you read Romer v Evans, while there is IMNSHO no need to have much discussed the ridiculously formal and narrow view of the right to petition for redress of grievances, there was most certainly a need to do *something* different from what was expected of the court if Amendment 1 was to be struck down. Kennedy decided that the right thing to do was to pull a Reed v Reed – not try to attack the law on established rational basis, but refuse to say that one is applying a heightened standard while de facto applying a heightened standard.

    Kennedy, had he come out and said he was applying heightened scrutiny, would have been pilloried. Now that a POTUS has said he supports heightened scrutiny, it may very well be that Kennedy no longer feels he needs his Reed v Reed style fig leaf.

    To the extent that the administration is saying: “go for it, you should find this unconstitutional and you should do it under intermediate scrutiny,” they are taking a risky strategy, but the payoff for all of us in reestablishing the possibility of recognizing new categories deserving of greater-than-rational-basis scrutiny can be immensely helpful. You never know when it will be you arguing that a history of adverse action is not justification for future adverse actions, but you can know that if it is you, you will always lose under simple rational basis…and your greatest relief will be the end of the 40 year reluctance to find heightened scrutiny ending and returning to an era where we actually perform a legal test to see if the circumstances deserve more careful consideration than, “did the legislature have a motive? Were the legislators sane? Yes to both? Then you lose.”

  5. cptdoom:

    Here’s what I don’t understand, and maybe someone with a better understanding of Constitutional Law can explain it, but why has there been such a dilemna about what level of scrutiny applies to laws like DOMA? As I understand it, gender is already a suspect class, and these laws discriminate by gender, so where’s the issue?

  6. Michael Heath:

    cptdoom writes:

    As I understand it, gender is already a suspect class, and these laws discriminate by gender, so where’s the issue?

    Have the briefs filed advocating DOMA Sec. 3 be overturned argue that this section discriminates by gender?

  7. uncephalized:

    @cptdoom and Michael Heath:

    I have never understood why gay-marriage advocates don’t argue on the basis of sex/gender discrimination all the time. The language protecting against gender discrimination is already in the Constitution, and bans on gay marriage can easily be framed in a way that makes it clear it is gender discrimination–if a man can marry a woman, it seems obvious that it’s discriminatory to the female gender to prohibit them doing same; invert the argument for man-man marriage.

    It seems like a great way to do an end-run around all the stupid crap the Christianists are always pulling to me. I don’t know why I’ve never heard of a court case where the argument was framed this way.

  8. cptdoom:

    @uncephalized – I know Ted Olson has made the gender argument in speaking about the Prop 8 case, but don’t know if they included that in their brief.

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