The Brief for the United States Arguing that Section 3 of the Defense of Marriage Act is Unconstitutional

Marty Lederman

A landmark legal development appears largely (but not completely -- see, e.g., Nan Hunter and Chris Geidner) to have escaped significant public and blogospheric attention. Last Friday, the Department of Justice filed the first brief for the United States on the merits arguing that discrimination on the basis of sexual orientation is subject to heightened constitutional scrutiny, and that therefore section 3 of the Defense of Marriage Act -- which denies to same-sex married couples all of the status, recognition and federal benefits otherwise available under federal law to married persons -- is unconstitutional. The brief is, of course, the product of a constitutional determination to that same effect made by the President on the recommendation of the Attorney General, announced back on February 23d.

The brief speaks for itself.

Brief notes on ancillary matters, to provide some context:

-- The brief is not on the government's own motion, but is instead in response to a motion filed by the Bipartisan Legal Advisory Group of the U.S. House of Representatives to dismiss a complaint of a married federal employee seeking the benefits that would be hers if her spouse were a man. (The brief in support of the motion to dismiss, written by Former Solicitor General Paul Clement, among others, is here.) Accordingly, the United States does not ask the district court to grant any relief to the plaintiff, nor to enjoin enforcement of section 3 of DOMA; it only argues that the district court should deny the motion to dismiss. Indeed, as the Attorney General's February letter explained, the Executive branch will continue to enforce section 3, even as it argues against its constitutionality, "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." (There is ample historical precedent for this enforce-but-do-not-defend practice.)

-- The focus of both briefs is on the standard of scrutiny that courts should apply to discrimination on the basis of sexual orientation, i.e., on whether sexual orientation should be treated as a suspect or quasi-suspect classification, as the Supreme Court has treated distinctions based on race, sex, national origin and illegitimacy. There is precedent of the Ninth Circuit -- including most importantly High-Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) -- holding that such discrimination on the basis of sexual orientation is not entitled to heightened scrutiny, but should instead be subject only to "rational basis review." (DOJ has recently argued, albeit without much success, that there is a "reasonable argument" that DOMA section 3 withstands rational-basis review -- see note 14 of its brief.) The DOJ brief concedes that the High-Tech Gays holding is "binding authority," but argues that "[t]o the extent [that it] rested on inferences drawn from the Supreme Court's decision in Bowers [v. Hardwick], that rationale does not survive the overruling of Bowers in Lawrence [v. Texas]"; and "to the extent High-Tech Gays considered the factors the Supreme Court as identified as relevant to the inquiry [on standard of equal protection scrutiny], . . . we respectfully submit that its consideration was incomplete and ultimately incorrect." The brief for the House Bipartisan Legal Advisory Group, by contrast, relies almost entirely on the stare decisis effect of High-Tech Gays and other Ninth Circuit precedents. That brief does, however, include one paragraph on the merits of the question:

Given these binding precedents, there is no need to review the considerations that make a class suspect or not. That said, no one can doubt the political power of those who support same-sex marriage and similar rights. Congress’s passage of the Don’t Ask Don’t Tell Repeal Act of 2010, and the Matthew Sheppard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, P.L.
111-84, §§ 4701-13, 123 Stat. 2190, 2835-44, are two recent examples that reflect that influence. DOJ’s decision to forego the defense of DOMA is itself an example. That decision resulted from sharp public criticism of the Obama Administration by gay rights organizations.

-- In a somewhat related development, the U.S. Court of Appeals for the Ninth Circuit yesterday lifted its stay of a district court injunction against implementation by the Department of Defense of the statutorily mandated "Don't Ask; Don't Tell" policy. Although a DOD spokesperson announced that the Department will comply with the court order, it is not clear how much practical effect the order will have, because (as the spokesperson explained) "[i]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well under way, and certification [which is the final step to perfect the statutory repeal] is just weeks away.”

Of particular note is that in explaining why it was lifting the stay, the court of appeals cites the Government's just-filed brief in the DOMA case: "in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny." This might be read as a suggestion that the U.S. has virtually conceded that DADT, like DOMA, is unconstitutional. If so, that might be an overreading of the DOMA brief: In footnote 4 of that brief, DOJ writes that "[c]lassifications in the military context . . . present different questions from classifications in the civilian context, see, e.g., Rostker v. Goldberg, 453 U.S. 57, 66 (1981), and the military is not involved here."
Posted 6:03 AM by Marty Lederman [link]