Two months ago, the Obama Administration created a significant amount of controversy by filing a brief in defense of the Defense of Marriage Act ("DOMA"). I wrote at the time that Obama was correct in defending DOMA even if he disagreed with DOMA.
Critics of the diary and the Department of Justice filing fired back that even if the Department of Justice was correct in filing a brief defending DOMA, the language used in the brief was wholly insensitive and tone-deaf to the gay community. Moreover, people argued that the Department iof Justice also threw in every argument it could, including arguments on the merits, when it could have avoided a kitchen-sink approach and curtailed its language to purely technical arguments.
It is clear from the reply brief filed today by the Department of Justice that those critics' voices have been heard. (For those who are not clear on the process: The United States filed a motion to dismiss the case; Plaintiffs in the case filed an opposition; today the governemnt filed its reply brief). Here's my take:
- The brief (which you can read here) opens with the government urging the Court to decide the grounds not on the merits, but on narrower grounds of standing and jurisdiction. Thus, the government urges a decision on narrow, technical grounds:
Thus, on the issues of jurisdiction and standing alone, without even reaching the merits, this case should be dismissed.
(emphasis added).
However, the Department also speaks to the merits, and it is here that the brief corrects misinterpretations created by its prior brief. It is here that the Department speaks as much to critics as to the Court:
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however,
the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. And in this case, plaintiffs' constitutional claims are unavailing. . . On that basis alone, those claims should be dismissed.
The government also indirectly acknowledged the critical voices saying that this case should never have been defended at all, by making a point similar to that I argued in my diary about the need for the Department of Justice to uphold the tradition of defending the law when there is a legal basis to do so:
This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.
That's a door that swings both ways. We want a Department of Justice that will defend laws regardless of the politics of the White House, which may not like certain laws. Because if we like it when a Democratic President does it to a law we don't like, what will we think of a Republican President who does it to a law we do like? The politicization of the Department of Justice went on for 8 years too long. The Administration aims to go back to an independent Department. That should be encouraged, even if we don't like its impact at times.
- The meat of the brief raises and presses arguments based on issues of jurisdiction and standing.
First, the Department advances an extraordinarily technical argument that because the state court lacked jurisdiction, the federal court does, as well. The only apprent response by Plaintiffs was to point to some alleged agreement that the parties "understood" that the case would be removed to federal court, but the government denies any such understanding and says, in any event, there is no jurisdiction in either court, so it doesn't matter.
Second, the government argues that Plaintiffs' challenges to Sections 2 and 3 of the statute cannot be adjudicated because Plaintiffs lack standing. "Standing" means that you have to have suffered some non-speculative injury, or likely will suffer a non-speculative injury, that is caused by the whatever violation of law or the Constitution I am seeking to stop with my lawsuit.
This is a pretty simple, straightforward concept, really. I can't sue Taco Bell for using genetically altered meat in its food if I never ordered a meat product from Taco Bell, or I don't plan on eating at a Taco Bell, or if did go to Taco Bell and order a meat-filled product but I was never injured. If can't show any injury (or likely injury) to myself (rather than to others) from eating genetically altered meat from Taco Bell, I cannot sue Taco Bell on that claim.
Here, the government is arguing that the Plaintiffs can't challenge Section 2 of DOMA (which provides that one state need not recognize a same-sex marriage performed under the laws of another state), because Plaintiffs not only do not allege that they have ever sought to have a state recognize their California gay-marriage, but they don't even allege that they will seek to have another state recognize their California gay marriage. In other words, the government alleges that Plaintiffs have never been to the Taco Bell, and they aren't alleging that they even plan on going to Taco Bell. No injury, no standing. Quod erat demonstrandum.
Similarly, the government urges the court to dismiss the Plaintiffs' challenge to Section 3 for lack of standing. Section 3 is the section that, through definitions of "marriage" and "spouse" limits federal benefits to same-sex couples. But the government argues that Plaintiffs have never shown that they applied for federal benefits and were denied. It is not sufficient under the law of standing (the government argues) that they some day may apply for benefits. The law demands more before you can bring a suit.
In my view, these arguments are technical, non-merit arguments that have little to do with DOMA and everything to due with dry, traditional concepts of jurisdiction and standing. Whatever the tone and kitchen-sink approach may have done to stir controversy, that approach is decidedly absent here. This brief asserts limited arguments on narrow, technical grounds.
- Next, the brief presents the government's argument that the equal protection claims should be dismissed because the law is subject to rational-basis review.
Bit of a primer here: "rational basis review" is the lowest level standard of review employed by a court. Under that level of review, a law may stand if there is a rational basis for it, which is an incredibly easy standard to meet, and doesn't even really require that Congress be "rational" to pass a law. This standard is lower than, say, heightened review, which is required where a statute discriminates against a suspect class, such as members of a racial group. Under this standard a law cannot be upheld unless there is a "compelling governmental interest" in passing the law.
Here the government argues that DOMA is subject to rational basis review. The government cited seven cases where DOMA has been specifically held to be Constitutional and subject to rational basis review. The government argued:
That there is now a debate taking place in this country about same-sex marriage does not make Congress's belief in this regard any less rational. Basic federalism principles allowed Congress in 1996, and allow Congress now, to take this uniform approach based on a traditional definition of marriage that all 50 states recognize while the states grapple with the emerging debate over same-sex marriage.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.
For some, it will always be the case that arguing that rational basis review applies to DOMA is a bridge too far. They see a statute that discriminates on the basis of sexual orientation no differently than a statute discriminating on the basis of race. However, if a number of Courts of Appeals have recognized that DOMA is Constitutional and subject to rational-basis review, the Department of Justice has precedents to hang an argument on, and it should press those arguments in court.
Importantly, however, although the government argues that DOMA is subject to rational basis review, there are a couple of points that will likely be overlooked by critics. Those points should be noted:
First, this brief is heavy on acknowledgment that the debate on the issue of gay marriage is fluid and evolving, and sparse on a detailed legal analysis of the equal protection claim. Put simply, the brief says what it needs to say on this point, and no more.
Second, at the same time, the government goes out of its way to reject arguments made by intervening parties who entered the case in defense of DOMA. Those intervening parties made the argument that one of the "rational" bases for supporting DOMA is that the law provides a structure for the appropriate raising of children. The government goes out of its way to reject that argument as strongly as possible:
Unlike the intervenors here, the 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 Congress's decision to define marriage as a union between one man and one woman [Citing Intervenors' brief]. Since DOMA was enacted, the American Academy of Pediatrics, the American sychological
Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America 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. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because "the sterile and the elderly are allowed to marry." For these reasons,
the 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 interests to
defend DOMA's constitutionality.
In my view, the government spent more time and effort discrediting and dismissing one of the key arguments raised by conservative opponents of gay marriage in the case than it did urging the Court to apply rational basis standard and dismiss the equal protection claims.
Critics should recognize and applaud this step taken by the Department.
- Finally, the government did not use the space available to it under the page limits rules to go back and reiterate the numerous merits arguments that were untouched by Plaintiffs. Instead, the government devoted a small paragraph to make the sparse and simple argument that Plaintiffs never responded to certain arguments raised by the government.
In conclusion, this was a spartan document that hit primarily on technical, dry arguments of jurisdiction and standing; that was extremely limited in its equal protection arument; that discredited a key conservative talking point regarding children raised by gay couples; and that made it clear that while the Obama Admninistration did not approve of DOMA, iot would defend it as required by tradition.
This is a document that shows that the Department heard its critics, and responded accordingly. I hope the critics read the brief and see that.