DOMA: The Ripple Effects of Heightened Scrutiny

The relative scrutiny applied to a given action by the government is all about trust. In most cases, we trust that Congress knows what it's doing and we trust it has a good reason for doing it. We trust that when Congress makes a distinction between two groups of people — say, those above or below a certain age or those who make above or below $40,000 per year — it is distinguishing between those groups for a valid reason. That is, younger people are not mature enough to vote or drive and richer people should be taxed at a higher level. We assume that what Congress does in these areas is rational and legitimate and courts are loathe to second guess.

Capitol But, when Congress makes certain distinctions — on the basis of race, religion, national origin or gender, for example — we are a little more skeptical. We know from experience that Jim Crow laws that classified people on the basis of race, for example, were really manifestations of animus toward African-Americans. So, we don't trust Congress as much in these cases. Congressional action is more often animated by nefarious motives when it classifies by race, gender or national origin, and since that is the case, we scrutinize its activities more closely.

President Obama has stated that he's skeptical when Congress passes a law that classifies people on the basis of sexual orientation. Years ago, the executive branch assumed that Congress had a reason to make the gay distinction — supposedly, gays were not good parents, could never love each other, could never take care of children, were negative influences. But, the President knows all that is wrong. Like the Supreme Court said in cases like Romer, President Obama can see no reason to discriminate against gays, so any law that does must be viewed with great skepticism.

This means that the President's decision not to defend DOMA in two Second Circuit cases has significant implications beyond those cases.

First, the Administration will cease to defend DOMA in all jurisdictions, not just the Second Circuit. Attorney General Eric Holder's letter, and the department's subsequent actions, make that clear.

Second, the President's heightened scrutiny policy opens the door for advocates to change tactics in their gay rights cases. No longer up against the nearly impenetrable hurdle of presumptive constitutionality, these lawyers can argue for heightened scrutiny on their own, citing President Obama's DOMA position as precedent. The DOJ's brief in Log Cabin Republicans v. United States, the "Don't Ask, Don't Tell" case, is due in short order, and the government will be faced with an opportunity to argue for heightened scrutiny. More likely, though, the government has a more pressing argument to make in Log Cabin Republicans — the court should let the legislative and executive branches unwind DADT per the repeal plan enacted in the lame duck Congress.

Soloway But, the DOMA decision will have more direct impact. For example, Lavi Soloway, an attorney friend of mine, leading advocate of gays in immigration cases and founder of Stop the Deportations: The DOMA Project, has taken the DOJ's position and argued that since it is DOMA that is forcing legally married binational same-sex couples to be ripped apart — DOMA prevents the federal recognition of their marriage, thus preventing a foreign national spouse from legally remaining in the United States — the Administration's view that DOMA is unconstitutional should, at a minimum, become part of immigration officials' decision-making process when it comes to how to proceed with deporting the foreign national spouse of legally married same-sex couples.

Mr. Soloway's position raises an important distinction — the difference between defending a law in court and enforcing the law in practice. He is essentially arguing that the DOJ's official statement that DOMA is unconstitutional should inform the opinions of the the Board of Immigration Appeals (BIA), a fifteen-judge panel that serves as the highest administrative body for interpreting immigration laws. Mr. Soloway is right. The Huffington Post implies that Mr. Soloway is asking that the Administration stop enforcing DOMA through "innovative strategies" to ensure families can stay together. That is not the case. Mr. Soloway is asking immigration officials to include the Administration's view of DOMA's constitutionality as part of the context in which the officials decide how to proceed with binational same-sex couples. Whether the immigration judge grants continuances (delays), deferred action (holding deportation in abeyance) or administrative termination (almost like ending the deportation proceeding) is up to the judge's discretion. So, Mr. Soloway wants to make sure that these judges take the Administration's view of DOMA into account.

This is not like saying we should stop enforcing DOMA. And, as difficult it may be to say, we must continue to enforce it until a court says not to or it is repealed. We cannot allow our executives to stop enforcing laws they do not like. We should be wary any time our executives stop defending duly enacted laws, as well, but DOMA may be one of those rare circumstances where the discrimination is so evident, so hurtful and so wrong, that no rational argument can support it. But, the executive's role is to enforce the law and until a definitive legal decision from the Supreme Court, or until Congress repeals DOMA, the law remains on the books and must be enforced. We are a country of laws, not men. And being governed by those laws, however odious one might be, protects us from being governed by men who wish us ill.

This brings us to the third implication of the President's policy toward DOMA. By declining to defend DOMA, the President has opened the door for Congress to get involved. Congress has the power to step in and defend duly enacted laws and the Republicans in the House have already stated that they intend to spend taxpayer money defending DOMA. But, it may surprise you to know that the DOJ has pledged to work with Congress to make sure that all DOMA cases get a comprehensive pro-DOMA argument on the record. This is actually in the Administration's (and our) best interests. Without a complete record at trial — without hearing arguments from all on all sides of the DOMA debate — an appellate court cannot adequately address the constitutionality of the statute. President Obama may argue that DOMA is unconstitutional, but he wants every court to be able to see how his argument has greater merit than any other.

Almeida Fourth, the President's heightened scrutiny policy may affect employment non-discrimination cases. My friend and colleague Tico Almeida, a civil rights attorney, argues that the government's position with respect to DOMA will make it easier for state and local employees to argue that being fired for being gay violates their federal constitutional rights. Mr. Almeida has an extensive background in employment law and he worked tireless to get the proposed Employment Non-Discrimination Act through the last few Congresses. What's more, he is exactly right.

Consider Mr. Almeida's hypothetical: Take a lesbian employee of the Alabama Department of Agriculture who is fired when she comes out. Alabama has no ENDA, so the fired employee files a claim that the state's action violated her 14th Amendment right to equal protection under the law. Her attorneys will argue for heightened scrutiny, pointing to the DOJ's DOMA opinion and any case in which heightened scrutiny for anti-gay discrimination has been adopted up to that point (we assume this will eventually happen). And, if the court adopts heightened scrutiny, it will be easier for the fired employee to win her case than if she had been forced to jump the rational basis hurdle. The result of this case — after it goes up the chain of courts — will be a judicially-imposed ENDA with respect to gays on Alabama and any other state within the court's jurisdiction. We can debate the legal merit of such a result, but we cannot deny that the fired employee will have an easier case under heightened scrutiny.

Fifth, this shift speaks volumes to the President's position on gay rights, in general, and marriage equality, in particular. He has stated his earnest opinion that he is "wrestling" or "grappling" with gay marriage. But, the Administration has said that the President was moved by the more then $350,000 estate bill that Edie Windsor is being forced to pay because the federal government did not recognize her same-sex marriage. If he thinks that DOMA is unjust and he thinks that anti-discrimination merits heightened scrutiny, his evolution toward marriage equality may not be far behind.

Indeed, the last thing we want to do is rush him. I am not privy to any Administration strategy sessions and I believe that the President is earnestly wrestling with this issue, just like my mother did when I came out to her. He is grappling with his traditional and religious upbringing and his inherent proclivities and prejudices that are common to many, on the one hand, and his progressive views, his many gay friends and distaste for discrimination in all forms, on the other hand. But we cannot expect everyone to wholeheartedly accept gays as equals any more than we can expect every gay and lesbian youth to immediately and wholeheartedly accept their sexuality on their 10th birthday. We come to acceptance at our own time, through our own journey. And, the half of America that opposes marriage equality and can relate to President Obama may see him "wrestling" or "grappling" or "evolving" on gay rights and realize that they too can evolve. The easiest way to lose these potential allies is to make gay marriage incomprehensible to them; the way to win these allies for sure is to raise up a role model who is just like them, going through changes, adapting to new realities and learning to break old habits. That role model is President Obama and long before he changed his views on DOMA and heightened scrutiny, he was the best thing that happened to gay rights in America.

Many of these effects require a court, or even the Supreme Court, to adopt heightened scrutiny with respect to state discrimination on the basis of sexual orientation. In an upcoming column, I will discuss the merit of that position from an historical and precedential perspective and the likelihood that it will be adopted in the future. But for now, few courts have accepted heightened scrutiny as the governing legal standard — the Ninth Circuit and some state courts are the exceptions. When the DOJ takes a position, though, it is far more likely that the position will be adopted by the courts.

This policy shift is indeed a watershed and President Obama deserves our thanks and gratitude. But, stay tuned… This story is far from over.


  1. joe says

    I thought the 9th circuit has adopted intermediate scrutiny pertaining to sexual orientation cases only in as applied substantive due process cases?

  2. GregV says

    Ìt seems to me that DOMA classifies people not according to sexual orientation but, rather, according to their sex.
    Likewise, Loving v Virginia classified people not according to whether they were romantically drawn to members of another race, but, rather, according to the category of race itself.

    Let`s say a white female is attracted to males and females, some black and some white. But she is de facto married to the most compatible partner life has led her to, who happens to be black and female. The anti-miscegnation laws would have treated both members of that couple unfairly because of their race and DOMA would treat them unfairly based on their sex.

    Of course, DOMA has a disproportionately harmful effect on gay and bisexual Americans, but the discrimination is based on their status as male or female.

  3. John B. says

    Please don’t say things like “President Obama has decided that DOMA is unconstitutional”, which plays into the hands of the opponents of same-sex marriage and other Obama haters. They are getting a lot of mileage out of this but (1), Obama has only “decided” that sect. 3 of DOMA (federal recognition) is unconstitutional. And (2), at least one federal court has ALREADY ruled that sect. 3 of DOMA is unconstitutional so Obama is not making constitutional decisions in a vacuum.

  4. Matt in NYC says

    Where have all the Obama complainers gone? You know, the ones who, 90 days ago, were calling for his impeachment because he’s such a turncoat to us gays?

    C’mon, people – I ask you, what has Obama done for gay people in the past hour or two? NOTHING!

  5. Timzilla says

    Ari, does it make a difference that only the House is likely to vote to defend DOMA instead of the entire Congress, House and Senate? I heard a legal expert on NPR say she was not sure if the entire Congress had to agree to defend DOMA to have the right and ability to do so. Thanks for your thorough analysis.

  6. says

    @joe: i think your interpretation is one among a number of possible interpretations. the holding in witt, for example, has been used by advocates in other cases to argue for intermediate scrutiny in cases outside the SDP orbit. but, youre not wrong. i take issue with the word only. I may agree with you, but our view is not the only one out there.

  7. says

    @gregv: thank you for your comment. you touch on a legal strategy that the gay rights movement used some time ago — arguing that any anti-gay laws discriminate on the basis of sex, i.e., a man can marry a woman but a man cannot marry a man, hence sex discrimination. this line of reasoning has more or less been rejected by the courts, except in a few rare circumstances.

  8. Trev says

    I, too, appreciate these analyses.

    I’m reluctant to go to far in giving Obama the benefit of the doubt, however. It was anger, fierce opposition and bold activism that motivated him to move on gay rights. He’s in coalition building mode now and knows he has to win us back.

    The worst thing we can do is to get complacent again.

  9. says

    @timzilla: thank you for your comment! i researched this at the behest of a number of marriage rights organizations and there are people out there who disagree with me. but, my reading of the statute and Congressional rules is that both chambers need not agree. the House can step in where the Senate does not. in order for the Senate to step in, the motion would need the assent of 5 of 7 committee chairs, and there is no way that is happening. as is the case with many differences between the House and Senate, it is a lot easier for the House majority to do things its way. still, it appears as if the House majority has to be behind intervention. it is a longshot — but possible — that libertarian Tea Partiers could vote against intervention.

  10. Derrick from Philly says

    “It was anger, fierce opposition and bold activism that motivated him to move on gay rights.”

    Well, move at a pace that Rahm Emanuel thought prudent and politically wise. Rahm doesn’t have to protect a 1st term Democratic President anymore.

    “He’s in coalition building mode now and knows he has to win us back”

    You mean the activists? According to that poll taken of Gay Americans a couple of months ago he still had the rank and file gays…of “openly gay” folks, I guess.

    Thank you, Ari Waldman.

  11. jjasonham says

    Thanks so much for these, Ari.

    @Trev. I disagree, and I’m willing to (like most others) give Obama the benefit of the doubt. It would be very different if he didn’t mention anything about progressing gay rights during his campaign…but he did. I’m all about pushing for gay rights as much as the next guy, but to dismiss this administration’s progress in that realm as purely coalition building without recognizing it as part of it’s initial goals is disingenuous.

  12. Fred says

    Sorry, I back Trev on this one. Credit where credit is due, but I think these steps happened PRECISELY because there is an election next year. I give more credit to the activists who are pushing for this more than Obama’s “grappling” moves.

  13. Paul says


    The standard for strict scrutiny is “necessary to achieve a compelling government interest”. That means it has to be the least restrictive means possible.

    The substantial/legitimate standard is intermediate scrutiny, which — while used by a few judges to analyze sexual orientation and gender laws in the past — does not appear to be what the president is advocating here.

  14. says

    @Paul: thank you for your comment and thanks for reading. with respect paul, while i admit that the original DOJ press release is not crystal clear, i am confident that the President is referring to intermediate scrutiny. the letter from AG Holder refers to heightend scrutiny, which can generally refer to both intermediate and strict scrutiny, but in practice, when courts refer to heightened scrutiny and do not mention strict, they mean some level of heightened scrutiny less than strict. this makes sense, especially since the federal courts have been loathe to extend strict scrutiny to any group other than those listed in the famous footnote to Carolene Products. also, the rationale for the policy shift mimics the rationale for intermediate scrutiny for state action that discriminates on the basis of sex/gender. this circumstantial evidence, coupled with the Administrations stated views in the press and before Judge White in a related case, suggests that the Administration is seeking intermediate scrutiny rather than strict scrutiny.

  15. FakeName says

    There appears to be a distinction between “intermediate scrutiny” as it has traditionally been used and “heightened scrutiny” as it has been articulated in Witt. Traditional “intermediate” scrutiny involves a two-pronged test: 1) the law “furthers an important government interest”; 2) the law does so “in a way that is substantially related to that interest”. Whereas “heightened” scrutiny as articulated in Witt is a three-pronged test: 1) the law “must advance an important governmental interest”; 2) “the intrusion must significantly further that interest”; “the intrusion must be necessary to further that interest”. This strikes me as much stronger than traditional “intermediate” scrutiny in requiring that any intrusion on personal liberty is “necessary”.

    Unfortunately “intermediate” and “heightened” have long been used interchangeably in the law so it’s difficult to know from the information thus far available exactly what Obama means by “heightened scrutiny”.

  16. TampaZeke says

    Ari, Obama didn’t grow up religious. His first foray into religion and church was with Trinity United Church of Christ in Chicago. I know this because Obama said so when he was the key note speaker at the 2007 General Synod of the UCC in Hartford, CT, which I attended. The United Church of Christ is the only mainline Christian denomination that has endorsed full spiritual and civil marriage equality (General Synod 2005, Atlanta, GA).

    Knowing this and adding it to his previously stated support for marriage equality makes it very clear that he has a politically expedient, and not religious, objection to marriage equality; no matter what he says.

  17. says

    Uh, Mr. Waldman, sorry you missed it, but, as noted Monday on Towleroad, the ODOJ submitted their latest brief in the LCR DADT case LAST WEEK.

    They did NOT use the “opportunity to argue for heightened scrutiny” re DADT but rather spun new heights of bullshit out of proverbial thin air about how “repeal” has neutralized the case…a ridiculous claim LCR’s attorney asserts the nature of appeals prevent the court from even considering. [Though he oddly chooses to ignore that the ODOJ DID again reference cases that have found DADT “constitutional.”]

    And, counselor, in addition to paying more attention AT LEAST to your own platform before commenting, could you please at least have the integrity to stop smearing your legal opinions with Obambot talking points such as the moldy “he MUST enforce all laws” [no, he doesn’t], and the latest Obama Girl spin: “the last thing we want to do is rush him” to stop publicly preaching his religio-fascist nonsense about marriage equality because he can be “a role model” to the homohaters “who is just like them, going through changes, adapting to new realities and learning to break old habits.” HURL!

    AND, your ridiculous ejaculation: “long before he changed his views on [ONLY Section 3 of] DOMA and heightened scrutiny, he was the best thing that happened to gay rights in America.”

    Tell that to LCR whose lawsuit, as of last Friday, the ODOJ was STILL trying to simply kill by falsely claiming LCR had no standing to file in the first place, and the hundreds of gays he needlessly discharged, the tens of thousands of gays STILL being forced to fight and die for their country in the closet, the gays service members who, even after repeal his finally implemented, will not have the same protections against discrimination as other classes in the military because Obama backed SECDEF Gates demand that be gutted from legislation, and the gay military couples who will, for the same reason, be denied the same benefits that straight couples have, such as on-base housing, which the DoD has ACKNOWLEDGED are NOT prevented by DOMA, the gays in the majority of states who can still be fired because he immediately abandoned his promise to fight for ENDA, Dan Choi and Jason Knight, among others, whom his DoD is still hounding to repay their “unearned” reenlistment bonuses EVEN THO the DoD has TOTAL power to wave it, the unknown numbers of gay dischargees such as Richard Collins whom the Obama’s DoD is STILL refusing to give 100% separation pay to—for which the ACLU is suing the government, lesbian federal employee Karen Golinski whom Obama, Inc., is still refusing to allow to add her wife to her medical benefits despite a judge’s order—for which Lambda Legal is suing them, the unknown number of partners of gays and lesbians who can still be denied the right to make medical decisions for their hospitalized partners despite Obama’s promise to order that change, ad infinitum.

    Just sayin’.

  18. BobN says

    “First, the Administration will cease to defend DOMA in all jurisdictions, not just the Second Circuit. Attorney General Eric Holder’s letter, and the department’s subsequent actions, make that clear.”

    I don’t think that’s true.

    The Holder memo:

    Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

    After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

    I think the decision to not defend DOMA, Section 3 only applies to “such cases”, i.e. in those circuits with no rational-basis precedent.

  19. Derrick from Philly says

    Well, Michael, who the hell are you going to vote for next year? Ted Kennedy?

    You may have to run against the President yourself because no one in the Democratic Party seems interested in opposing a sitting Democratic President. If they were they’d have started making plans now. It aint like 1968 and 1980 when some disguntled party figure can come late to the primary race to represent the party’s disgruntled.

    You’re stuck with SlimJim. Have patience, mon petit chou.

  20. Randy says

    “We cannot allow our executives to stop enforcing laws they do not like.”

    Of course we can, AND DO on a regular basis.

    There are so many laws that enforcement is only applied to a few of them, as a practical matter.

  21. KT says

    “We should be wary any time our executives stop defending duly enacted laws … the executive’s role is to enforce the law and until a definitive legal decision from the Supreme Court, or until Congress repeals DOMA, the law remains on the books and must be enforced.”

    I generally agree, but I’m not terribly concerned in this instance. Juxtapose this administration’s action, in which its decision and reasoning were publicly stated for all the world to see, with, say, an administration’s classified decision to violate FISA (or maybe more accurately, determine when FISA can be ignored for the sake of “security”).

    Holder’s approach is a much more responsible and respectful way of doing things. And while there would probably be a dozen amicus briefs anyway, at least the opposition has a heads-up that they will need to appoint someone.

  22. KT says

    Also, I don’t think it’s necessarily true that executive branch *must* enforce every law.

    For instance, the DOJ has broad prosecutorial discretion. So does the SEC (which may be a better analogy, as its enforcement actions are purely civil in nature).

    I may be way off course. But take the DOJ’s failure/refusal to bring even a single criminal action against a major banking institution or an officer after the meltdown. Isn’t that a much greater departure from the executive’s role than what we’re dealing with here?

Leave A Reply