Balkinization  

Wednesday, February 23, 2011

AG Holder on DOMA

Jason Mazzone

In a letter today to Speaker Boehner, Attorney General Holder advised that pursuant to a directive from the President, the Department of Justice will not defend section 3 of the Defense of Marriage Act in cases currently pending in the Southern District of New York and the District of Connecticut. Those cases, Windsor v. United States (S.D.N.Y.) and Pedersen v. OPM (D. Conn.) involve challenges to section 3 of DOMA (which defines marriage for purposes of federal law as a union between a man and a woman) by same-sex couples legally married under state law. Holder reports that the administration has concluded that sexual orientation classifications merit heightened judicial scrutiny and that under that standard, section 3 is unconstitutional. Because no "reasonable" argument can be made in defense of section 3's application to married same-sex couples, "the proper course is to forgo the defense of this statute."

This sounds like heady stuff. Refusing to defend DOMA because it is unconstitutional would be a dramatic development. But a close reading of Holder's letter suggests that what the DOJ is actually doing is considerably more modest.

The key paragraph in Holder's letter is this one:
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
In other words, the actual position of the DOJ (which will remain in the case) is that if the courts agree with the government that heightened scrutiny is the appropriate standard, then the plaintiffs should prevail because section 3 of DOMA does not satisfy the heightened scrutiny test.

Whether the district courts (and the Second Circuit) will apply heightened scrutiny is an open question. Following the lead of other courts, they might conclude that rational review applies. If so, the government's position is that section 3 is constitutional under the rational standard.

Holder's opening rhetoric aside, the mechanics of the DOJ's position fall far short of a refusal to defend DOMA.

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