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.