A 'Heightened Scrutiny' Breakthrough at DOJ

Facing a March 11 deadline to file either an answer or a motion to dismiss in two lawsuits challenging the constitutionality of the Defense of Marriage Act (DOMA)— both of which require them to take a position on the level of judicial scrutiny applicable to a law that discriminates based on sexual orientation — the Justice Department (DOJ) and President Barack Obama have stated that a “heightened scrutiny” standard should apply, and that under this standard, Section 3 of the law is unconstitutional.

As a result, according to a February 23 announcement by Attorney General Eric Holder, DOJ will not file a motion to dismiss the two pending cases, Windsor v. United States, (filed in New York) and Pedersen et. al. v. Office of Personnel Management (in Hartford), and will presumably answer the two complaints by conceding its conclusions on Section 3’s constitutionality.

Forced to articulate the appropriate level of review for DOMA, administration says 96 law is unconstitutional

It was less immediately clear how the Justice Department might proceed in a separate DOMA challenge now pending at the trial stage in California, where it recently lost in a motion to dismiss, or — most significantly — in an appeal it filed in Boston’s 1st Circuit of a ruling last summer by US District Judge Joseph Tauro finding that Section 3 does not even satisfy the less demanding rational basis precedent established in that circuit.

Congress passed DOMA and President Bill Clinton signed it into law in 1996, shortly before that year’s national elections. Section 2 of the Act, which is not implicated in the pending lawsuits, provides that states are not required to give full faith and credit to same-sex marriages contracted in other states and jurisdictions. Section 3 provides that the federal government would not recognize same-sex marriages for any purpose of US law. As of today, no federal appellate court has questioned the constitutionality of either provision.

The Supreme Court has never declared what the appropriate standard is for federal courts in evaluating the constitutionality of laws that discriminate on the basis of sexual orientation. Under that court’s precedents, laws that discriminate based on a “suspect classification,” such as race, are subjected to “strict scrutiny,” a test under which the law is presumed unconstitutional and the government shoulders a heavy burden in demonstrating it is necessary to achieve a compelling public interest.

Laws that do not use a “suspect classification” are normally presumed to be constitutional unless the court can find no plausible non-discriminatory justification for them. This is the so-called “rational basis test.”

The Supreme Court has recognized that certain characteristics, such as sex, occupy an intermediate position between these extremes, and has evaluated sex-based classifications using “heightened scrutiny,” under which the government must show that a law significantly advances an important non-discriminatory governmental interest.

In Romer v. Evans, a 1996 ruling issued shortly before DOMA was passed, the Supreme Court struck down Colorado’s Amendment 2 — a state constitutional provision adopted by voters that prohibited the state or any of its political subdivisions from protecting gay people from discrimination. The high court found that the amendment was, on its face, a violation of the 14th Amendment’s Equal Protection Clause, not justifiable by any hypothetical or real non-discriminatory state interest. That ruling did not discuss what level of scrutiny should be applied in general to laws that discriminate based on sexual orientation.

When the Supreme Court struck down the Texas Homosexual Conduct Law in 2003 in Lawrence v. Texas, it based the ruling on the Due Process Clause rather than the Equal Protection Clause, also expressing no view on the appropriate method for analyzing sexual orientation discrimination claims.

In the absence of a Supreme Court standard, it has been left up to each federal appellate circuit to devise its own approach regarding the appropriate level of scrutiny. So far, every circuit court to address the issue has applied the rational basis test, but many of those rulings pre-date Romer and Lawrence and don’t take account of those important precedents.

A good number, in fact, were strongly influenced by the Supreme Court’s 1986 decision in Bowers v. Hardwick, which rejected a constitutional challenge to the Georgia sodomy law. Courts reasoned that if gay sex could be made a crime, then gay people were not entitled to constitutional protection from governmental discrimination. The Supreme Court overruled Bowers in Lawrence, stating that it was incorrect when it was decided.

Despite Lawrence, however, many circuit courts, including the 1st, based in Boston, and the 9th, in San Francisco, have continued to adhere to the view that sexual orientation discrimination claims are subject to rational basis review. In defending Section 3 of DOMA in pending cases in those circuits, DOJ argued to trial judges that rational arguments could be made to support the law.

In contrast, the 2nd Circuit, whose jurisdiction covers New York and Connecticut, has no precedent on this issue, forcing the Justice Department for the first time since Lawrence to make an argument in federal court about the appropriate level of review regarding such lawsuits.

After reviewing its options in the new cases, DOJ concluded it could not plausibly argue that a law that intentionally discriminates based on sexual orientation should be evaluated under the rational basis test. In a letter Holder sent to Republican House Speaker John Boehner explaining the administration’s new position, the attorney general laid out DOJ’s full analysis and its subsequent recommendation to the president that sexual orientation classifications should be analyzed under the “heightened scrutiny” test, and that when subjected to that test, the provision at issue would be found unconstitutional.

As Holder explained, under a “rational basis” approach, DOJ could argue that there were hypothetical justifications that might be advanced for the federal government to refrain from recognizing same-sex marriages. The one the administration relied on most heavily in defending Section 3 in the Massachusetts case Judge Tauro decided last year was an interest in uniformity — that eligibility for marriage-based federal benefits should not vary from state to state, as arguably would be the case if qualifications for marriage differed fundamentally from state to state. Congress, DOJ argued, had an interest in being “neutral” on the question of same-sex marriage as the issue was sorted out on a state-by-state basis.

But that was not really the basis on which Congress passed DOMA and, as Holder stated in his letter, when a statute is subjected to “heightened scrutiny,” it can’t be defended based on such rationalizations, but rather must be measured by the reasons Congress articulated at the time of enactment. A review of the legislative history shows Congress did not articulate any reasons that would be defensible under present-day constitutional analysis — they were all based on the view that gays are morally inferior beings whose defining sexual acts are subject to criminal punishment.

After Lawrence v. Texas, such arguments will no longer sustain a discriminatory statute. Indeed, last summer Tauro concluded that DOJ’s arguments were insufficient to uphold the law under rational basis review, and District Judge Claudia Wilkens reached the same conclusion last month in her ruling denying the government’s pending motion to dismiss a California DOMA challenge.

Usually, the Justice Department will defend statutes in court, a tradition the Obama administration has pointed to in defending its previous DOMA filings as well as its posture against challenges to the Don’t Ask, Don’t Tell law. It is clear from Holder’s letter and a public statement he also issued on February 23 that when the president and DOJ became convinced that the statute is unconstitutional and there were no longer any legally reasonable arguments in its defense, it was time to throw in the towel and concede the point.

This puts DOJ in an odd position, especially when a bill to repeal DOMA is pending in Congress but has so far had no real traction. Holder conceded that defending statutes is part of DOJ’s obligation to Congress, a co-equal branch of government. And so, the attorney general said in his letter to Boehner, the administration will do everything necessary to facilitate a legal representative of Congress joining the case to defend DOMA if Congress wants to pursue that course. While DOJ will continue to represent the government in these pending lawsuits, it will no longer argue that the statute is constitutional.

Still, the administration does not have authority to unilaterally ignore statutes still on the books, and so Holder announced the executive branch will continue to abide by Section 3 of DOMA until it is either repealed or definitively declared unconstitutional in court.

In his initial response to the DOJ announcement, Boehner questioned the timing of this major change in administration position, with so many other pressing issues in need of resolution, but DOJ’s statement was dictated by the litigation calendar, surely not by any desire on the president’s part to stir up this contentious matter right now.

Holder’s official statement and letter to Boehner leave unaddressed an important ramification of the administration’s decision on DOMA — its impact on its pending appeal in the 9th Circuit of the Log Cabin Republicans’ district court victory in its challenge to Don’t Ask, Don’t Tell. That statute is a prime example of a law that discriminates on the basis of sexual orientation.

The trial judge in that case, District Judge Virginia Phillips, used heightened scrutiny to strike down the law based on an earlier ruling by the 9th Circuit in the suit brought by Margaret Witt challenging her discharge from the Air Force Reserve. In that ruling, the court concluded that after Lawrence v. Texas, a law that burdens the intimate association rights of gay people must be subjected to heightened scrutiny.

Accepting that premise, DOJ asserted that Don’t Ask, Don’t Tell survives heightened scrutiny due to the special needs of the military, but lost that argument in front of Judge Phillips. DOJ’s new posture on DOMA suggests that the equal protection part of the Log Cabin case should acquire new life, although that might not change the administration’s litigation strategy, which continues to rely on the argument that deference to the political branches on military questions requires the court to uphold the ban.

DOJ's main problem now, of course, is that since Congress and the president have approved a law setting out a roadmap for ending Don’t Ask, Don’t Tell, that argument loses all logical force.