an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
President Obama, DOMA, and the Risks of Judicial (and Executive) Minimalism
On June 11, the Department of Justice filed a motion to dismiss and a supporting memorandum in Smelt v. United States, in which a same-sex couple married in California (during the period after the Supreme Court of California’s ruling and before the voters approved Proposition 8) challenges, in a California federal district court, the Defense of Marriage Act (DOMA), enacted by Congress in 1996. It is no wonder that proponents of civil rights for gay men and lesbians are reacting with dismay and criticism to the DOJ’s brief. The only way that I can make sense of this brief is that it reflects President Obama’s commitment to judicial minimalism – the view that legislatures rather than courts should decide contentious issues lest courts cut off proper democratic deliberation. But this brief also illustrates the risks both of judicial and executive minimalism, particularly for a progressive president who as a candidate championed the continuing realization of founding ideals of equality and of finding common ground beyond a Red and Blue America. I will focus on three points: (1) the contrast between the brief’s support of DOMA and President Obama’s call for its repeal; (2) the brief’s curious view of DOMA as representing a cautious and appropriate “neutrality” with respect to society’s still-evolving understandings of marriage; and (3) the brief’s selection of the most narrow and conservative formulations of the relevant constitutional tests for defining fundamental rights and liberties.
As a candidate, Senator Obama called for the repeal of DOMA. As President, his White House Agenda on civil rights calls for Congress to enact new legislation that would “ensure that the 1,1000+ benefits, currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally recognized unions.” Even though President Obama personally does not endorse same-sex marriage (instead favoring civil unions), these “other legally recognized unions” would presumably include marriages between same-sex couples in states where such marriages are permitted. Candidate Obama also spoke of the nation living up to its “founding promise of equality by treating all its citizens with dignity and respect,” a statement repeated on the White House website concerning civil rights for the “LGBT Community.” However, even if President Obama favors a legislative repeal of DOMA rather than a Supreme Court ruling of unconstitutionality, one might have expected some statements to that effect in the DOJ’s brief – if only a footnote! But there is not one word in the brief suggesting that denying these 1000+ benefits to same-sex couples who are married under their own state’s laws is unfair, discriminatory, a denial of dignity, or in any way problematic. Surely the Department of Justice could have said something signaling President Obama’s conviction that DOMA should be repealed, even if he viewed Congress as the proper body to do so.
A second distressing feature of the brief is its conception of DOMA as an appropriate form of federal “neutrality” in the face of society’s still-evolving understanding of marriage. To date, in the various state litigations over whether civil marriage should open up to include same-sex couples, the view of marriage as an evolving institution goes hand in hand with arguments as to why a further and appropriate evolution is to shift from a one man/one woman definition to a definition that allows two otherwise qualified persons to marry – or at least to create an alternative legal status with the rights of marriage. Here, however, the U.S. repeatedly defends DOMA as – in effect – preserving the federal status quo while some states experiment with traditional definitions of marriage and others reject such experimentation. How is this neutral? At the state level, DOMA “protects” states that do not wish to change their marriage definitions from having other states’ new definitions foisted upon them. (But as many family law and constitutional law scholars argued at the time of DOMA’s enactment, states already had the power, pursuant to public policy exceptions in standard conflict of laws rules, to decline to recognize out-of-state marriages.) At the federal level, by adhering to the traditional definition of marriage as only between one man and one woman, DOMA protects taxpayers who live in a state that opposes newer definitions of marriage from paying federal taxes that will be used to provide federal benefits to persons who entered into a same-sex marriage in a state that permits such marriages. This status quo neutrality that permits the federal government to discriminate between married couples based on whether they are opposite-sex or same-sex couples seems in troubling contradiction to candidate (and now President) Obama’s call for the nation to live up to its “founding promise of equality by treating all its citizens with dignity and respect.” Of course, in 1996, no state allowed same-sex couples to marry; but now, several states do. Moreover, an even greater number of states provide legal statuses, whether civil unions or domestic partnerships, that afford most or all of the benefits and obligations of marriage available as a matter of state law. President Obama publicly supports federal benefits for persons in civil unions or equivalent legal statuses. Even if his administration feels bound to defend DOMA, why not give the reader a signal – a wink in a footnote – that this is a troubling and discriminatory form of neutrality?
Finally, the brief is also surprising and troubling – coming from the administration of a progressive and Democratic President -- for its reliance on precedents authored by some of the Supreme Court’s most conservative justices to guide inquiry about what is and is not a fundamental right. The brief several times cites to the formulations by Chief Justice Rehnquist in Washington v. Gluckbserg. Notably absent is the more expansive formulation of liberty found in the joint opinion in Planned Parenthood v. Casey, and repeated by Justice Kennedy in Lawrence v. Texas. Lawrence features only for its claim that the case before it did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
It is also jarring to see the DOJ cite as authority – at the beginning of a string cite for the proposition that the federal constitution confers no affirmative right to governmental aid -- the much-criticized case, DeShaney v. Winnebago County Dept. of Social Services. DeShaney, indeed, keeps company with the also-controversial Harris v. McRae and Rust v. Sullivan, in which the Supreme Court upheld funding and facilities restrictions on women’s access to abortion and abortion counseling.
The brief also vehemently insists that the federal district court is bound by the “precedent” of Baker v. Nelson, a 1972 dismissal of an appeal of a Minnesota supreme court case rejecting a challenge by a same-sex couple to Minnesota’s marriage law. Granted, the case is currently in a lower federal court, bound by the decisions of the Supreme Court. But if this case reaches the Supreme Court, certainly the Supreme Court itself would not be bound by this summary dismissal. One would expect it to consider the dramatic legal and cultural transformations concerning the status of gay men and lesbians from 1972 to 2009. The Court’s own decisions – in Romer v. Evans and in Lawrence -- are part of this transformed landscape, but the brief minimizes these, suggesting they have nothing to do with the current case.
The overriding theme of the brief is that DOMA reflects an appropriately “cautious” federal stance in light of the still-evolving state definitions of marriage. As a stance taken by the Administration of a President who has publicly criticized DOMA as discriminatory and called for its repeal, this brief is far too cautious.