Wednesday, February 23, 2011

A whole new ball game on DOMA and same sex marriage


Back in July 2010, Judge Tauro in the federal district court in Massachusetts issued a pair of decisions overturning the Defense of Marriage Act (and offering some rather creative tenth amendment rhetoric). I was quoted in the New York Times as saying "What an amazing set of opinions . . . No chance they’ll be held up on appeal."

I can't say that now.

The Obama Administration announced today that it has taken the official position that DOMA is unconstitutional and refuses to defend it in litigation in the Second Circuit. Moreover, The Obama Administration now takes the position that legislation like that in DOMA, which discriminates on the basis of sexual orientation, should be subjected to heightened scrutiny, rather than rational basis scrutiny.

As Jason Mazzone points out, Holder has also said in a letter to the Speaker of the House that in those circuits that hold as a matter of precedent that the rational basis test applies to distinctions based on sexual orientation, the Justice Department's position is that there is a rational basis for DOMA. (Judge Tauro of Massachusetts, it should be noted, sits in the First Circuit, where courts have held that only rational basis applies). Nevertheless, the Justice Department's view is that these lower court precedents are incorrect and that rational basis should not apply.

Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals-- possibly the Second Circuit, where the latest cases are being brought--and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court. All of my previous predictions as to how constitutional challenges to DOMA will go forward must be revised.

Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.

Thus, it was only after the Truman Administration asked the Supreme Court to overturn Plessy v. Ferguson in Sweatt v. Painter in 1950, and again in the Brown litigation in 1952, and after the Eisenhower Administration's Justice Department concurred with the Truman Administration when it came into office, that the Supreme Court finally felt comfortable overturning Plessy v. Ferguson in Brown v. Board of Education in 1954. After the Bush Administration took the official position that the Second Amendment protects an individual right to bear arms in self defense (around 2001), this provided political cover for the Justices to reach the same conclusion in 2008 in District of Columbia v. Heller. Note that the President's explicit and public support for a constitutional position does not have to be a reason explicitly stated in judicial opinions, but it can be an important factor nonetheless.

The Administration's decision to switch sides does not by itself guarantee what the lower federal courts or the Supreme Court will do. But it adds to the weight of social forces moving toward the recognition of equal rights for gays and lesbians. It is possible, perhaps even likely, that some courts will disagree with the Administration's new position: after all, some courts disagree with the Administration's position on the health care bill and the Supreme Court did not agree with the Administration's position in Citizens United. But in neither of those situations did the same Administration switch sides midway through a series of cases on an issue of constitutional prominence.

The Obama Justice Department's move will give political legitimacy to judges in the Second Circuit to hold that sexual orientation discrimination deserves heightened scrutiny and to hold DOMA unconstitutional; similarly, it will give political legitimacy if Justice Kennedy someday joins a Supreme Court decision announcing that times have indeed changed and that "[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Nothing is certain. But this announcement is very, very important as a symbolic matter. It signals an important change in America's constitutional culture. The Presidency has put itself on the side of constitutional equality for gays and lesbians. This is perhaps even more significant than the Bush Administration putting itself on the side of an individual right to bear arms, a position that was, by 2001, already widely accepted in the general public.

Moreover, the fact that the Administration has now taken the position that discrimination based on sexual orientation is subject to heightened scrutiny means that federal courts will increasingly feel able to hold unconstitutional state laws that limit marriage only to opposite sex couples. It might be possible, as Andy Koppelman has argued, to strike down DOMA and uphold state bans on same-sex marriage if the Court applies the Romer v. Evans test of "rational basis with a bite." One would have to show that DOMA, which changes federal rules about which marriages to recognize for purposes of federal marriage benefits, but not existing state marriage laws, was motivated by "a bare desire to harm a politically unpopular group." However, if we move to heightened scrutiny, it's increasingly hard to distinguish the two situations.

When big constitutional changes come, it is usually the result of a series of events that cumulatively change America's constitutional culture. This is one of those events, and it is quite an important one.

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